Promoting the
Reform of Pretrial Detention
in CEE-FSU
Countries –
Introducing
Good Practices
Hungarian Helsinki Committee
2013
Written by:
Ivóna Bieber, Cristinel Buzatu, Zsófia Moldova, Nóra Novoszádek
Proof reading and editing:
Elizabeth Floyd
Acknowledgements:
We would like to express our gratitude to our colleagues who took the time and effort to
complete the questionnaires compiled by HHC, which served as the basis of this study:
Albanian Helsinki Committee –Etilda Gjonaj (Saliu); Georgi Bankov member and coordinator Bulgarian Helsinki Committee ; League of Human Rights (Czech Republic) – Maroš Matiaško;
Georgian Young Lawyers Association – Ekaterine Popkhadze, Eka Khutsishvili, Maia
Khutsishvili, Mikheil Ghoghadze, Tinatin Avaliani; Penal Reform International (Kazakhstan) –
Zhanna Malayeva; The Kosova Rehabilitation Centre of Torture Victims – Alban Muriqim;
Human Rights Monitoring Institute (Lithuania) – Karolis Liutkevičius; Institute for Penal Reform
(Moldova) – Igor Dolea, Victor Zaharia; Human Rights Action (Montenegro) – Marko Ivković,
Jelena Sapurić; Helsinki Foundation for Human Rights (Poland) – Maria Ejchart, Katarzyna
Wiśniewska, Marcin Wolny; The Romanian Group for the Defence of Human Rights (GRADO)
– Cristina Banciu; Public Verdict Foundation (Russia) – Natalia Taubina; Belgrade Centre for
Human Rights – Jovana Zoric, Nevena Dicic Kostic, Nikola Kovacevic; Foundation for Society
and Legal Studies (TOHAV), Turkey) – Sevgi Epçeli Arslan; Ukrainian Legal Aid Foundation –
Aigul Mukanova
We would also like to thank our interns for their contribution to this study: Sopio Asatiani and
Rysbek Akniet
The research was supported by a grant from the Open Society Foundations.
The content of this publication is the sole rsponsibility of the Hungarian Helsinki Committee and
can in no way be taken to reflect the views of Open Society Foundations.
2
Table of contents
1. Introductory note ..................................................................................................................................... 5
1.1. About the project ............................................................................................................................. 5
1.2. About the study ................................................................................................................................ 6
1.3. International workshop ................................................................................................................... 7
1.4. Terms and definitions ...................................................................................................................... 8
2. Statistical data ........................................................................................................................................... 9
3. Living conditions.................................................................................................................................... 16
3.1. Separating pre-trial detainees from prisoners ............................................................................. 16
3.2. Conditions of detention................................................................................................................. 16
3.3. Space per detainee .......................................................................................................................... 18
3.4. Frequency of “incidents” .............................................................................................................. 20
3.5. Speedy conduct of investigation................................................................................................... 22
3.6. Complaints about physical detention conditions ....................................................................... 22
4. Rights while in PTD .............................................................................................................................. 24
4.1. Access to counsel ........................................................................................................................... 25
4.2. Access to medical services ............................................................................................................ 25
4.3. Access to family members............................................................................................................. 27
4.4. Access to the case-file and evidence to be used against him ................................................... 28
4.5. Access to an interpreter ................................................................................................................. 28
4.6. Right to practice one’s religion ..................................................................................................... 29
5. Vulnerable Groups................................................................................................................................. 30
5.1. LGBTQI .......................................................................................................................................... 30
5.2. Juveniles (under 18)........................................................................................................................ 31
5.3. People with disabilities................................................................................................................... 31
5.4. People suffering from drug addictions ........................................................................................ 33
5.5. Women ............................................................................................................................................. 34
5.6. Seriously ill detainees ..................................................................................................................... 35
5.7. Foreigners ........................................................................................................................................ 36
5.7. Ethnic minorities ............................................................................................................................ 36
6. Ordering pre-trial detention ................................................................................................................. 37
6.1. Grounds for ordering pre-trial detention.................................................................................... 37
6.2. Authority competent to order pre-trial detention ..................................................................... 41
3
6.3. Reasoned and individualised decision ......................................................................................... 42
7. Duration of pre-trial detention............................................................................................................. 43
7.1. Maximum time limit for which pre-trial detention can be ordered ........................................ 43
7.2. Time limit to bring someone before a competent legal authority ........................................... 45
7.3. Independence and impartiality of the judicial authority ........................................................... 46
7.4. The power to order release ........................................................................................................... 48
7.5. Limitations on the use of pre-trial detention.............................................................................. 49
8. Review of pre-trial detention ................................................................................................................ 50
8.1. Ex officio review of pre-trial detention....................................................................................... 50
8.2. Review at the detainee’s request ................................................................................................... 51
9. Appealing PTD....................................................................................................................................... 53
9.1. The right to appeal ......................................................................................................................... 53
9.2. Success rate of appeals ................................................................................................................... 54
9.3. Deadline for an appeal ................................................................................................................... 56
10. After a final sentence is reached ........................................................................................................ 56
10.1. Deducting pre-trial detention from a final sentence ............................................................... 56
10.2. Compensation if released without a conviction ....................................................................... 56
11. State funded legal aid ........................................................................................................................... 58
11.1. Brief summary of international standards................................................................................. 58
11.2. Research results ............................................................................................................................ 60
11.2.1. Eligibility for state-funded legal aid .................................................................................... 60
11.2.2. Scope of state-funded legal aid ............................................................................................ 62
11.2.3. System for assessing the performance of state-funded legal aid lawyers ...................... 63
11.2.4. Practical deficiencies reported ............................................................................................. 64
12. Advocacy ............................................................................................................................................... 66
12.1. International jurisprudence ......................................................................................................... 66
12.2. National jurisprudence ................................................................................................................ 66
12.3. Most effective means of promoting change ......................................................................... 67
12.4. Ability of NGO sector to promote change .......................................................................... 68
4
1. Introductory note
1.1. About the project
This study was compiled under the auspices of the project: “Promoting the Reform of Pre-Trial
Detention in CEE-FSU Countries – Introducing Good Practices”, supported by the Open
Society Foundations.
The purpose of this project is to undertake a regional capacity-building and network-building
initiative on pre-trial detention (PTD) to encourage advocacy efforts to challenge PTD practices
in Central and Eastern Europe and the Former Soviet Union (CEE-FSU) region, to produce
comparative research on PTD in these countries and to facilitate an exchange of experiences
among the NGOs participating in the project.
The project is implemented by the Hungarian Helsinki Committee (HHC) with the assistance and
supervision of the Steering Commitee (SC). The SC is an advisory body on whose expertise the
HHC drew on while implementing project activities. The SC participated in establishing the
scope of the project, formulating the questionnaire and also in processing the acquired data and
writing the resulting study. The SC members are: Borislav Petranov, Senior Advisor, OSF- Rights
Initiative; Martin Schöenteich, Senior Legal Officer, OSF - Open Society Justice Initiative;
András Kádár, Co-Chair, Hungarian Helsinki Committee; Zaza Namoradze, Director, Budapest
Office OSF - Open Society Justice Initiative; Herta Tóth, Senior Program Manager, Human
Rights and Governance Grants; Dávid Vig, Program Coordinator, Human Rights and
Governance Grants; Zsófia Moldova, Legal Officer, Hungarian Helsinki Committee.
In the framework of this project the Hungarian Helsinki Committee, partnered with 15 NGOs
and human rights defenders from the CEE-FSU region. They are: the Albanian Helsinki
Committee – Ma.Av. Etilda Gjonaj (Saliu); Georgi Bankov member and coordinator - Bulgarian
Helsinki Committee ; League of Human Rights (Czech Republic) – Maroš Matiaško; Georgian
Young Lawyers Association – Ekaterine Popkhadze, Eka Khutsishvili, Maia Khutsishvili, Mikheil
Ghoghadze, Tinatin Avaliani; Penal Reform International (Kazakhstan) – Zhanna Malayeva; The
Kosova Rehabilitation Centre of Torture Victims – Alban Muriqim; Latvian Centre for Human
Rights – Ilvija Pūce; Human Rights Monitoring Institute (Lithuania) – Karolis Liutkevičius;
Institutul de Reforme Penale (Moldova) – Igor Dolea, Victor Zaharia; Human Rights Action
(Montenegro) – Marko Ivković and Jelena Sapurić; Helsinki Foundation for Human Rights
(Poland) – Maria Ejchart, Katarzyna Wiśniewska, Marcin Wolny; The Romanian Group for the
Defence of Human Rights (GRADO) – Cristina Banciu; Public Verdict Foundation (Russia) –
Natalia Taubina; Belgrade Centre for Human Rights – Jovana Zoric, Nevena Dicic Kostic,
Nikola Kovacevic; Foundation for Society and Legal Studies (TOHAV), Turkey) – Sevgi Epçeli
Arslan; Ukrainian Legal Aid Foundation – Aigul Mukanova.
This project consists of both a research component and an advocacy one. The research
component consists of a broadresearch project analyzing the legislation and practice governing
pre-trial detention in the CEE-FSU region.
The preliminary research results were presented at a three-day workshop held in Budapest,
between 28-30th of November 2012. This event brought together the researchers who worked on
the study, HHC staff, SC members and experts in the field of criminal justice. At this event, the
preliminary research results were presented and discussed. Participants and experts provided their
input and shared their expertise. This event also focused on developing concrete strategies to
address human rights concerns presented by pre-trial detention.
5
The input and comments that arose during the three-day workshop have been included in the
study. Also, the comments of research participants on the draft study have been incorporated
into the final study. Finally the study received input from the SC.
1.2. About the study
The research was carried out through a standardized questionnaire put together by a number of
HHC experts. In developing the questionnaire, the HHC drew from previous research projects,
such as “Promoting independent prison complaints mechanisms in CEE-FSU – Introducing
good practices”, a study conducted by the HHC for which a questionnaire was also developed.
The SC, OSF staff and a number of participating NGOs also contributed greatly to development
of the questionnaire. They were consulted during the drafting process, and their input is reflected
in the questionnaire.
The questionnaire takes a holistic approach to analyzing PTD and alternatives to PTD. It looks at
both the legislation and practice; it looks at statistics and opinions and incorporates desk research
as well as field research. The questionnaire combines quantitative and qualitative types of data
and gathers both snapshot and flow statistics. This allows for the clearest possible picture of the
legislation and practice concerning PTD and alternatives to PTD in the countries examined.
Furthermore, it is designed to highlight good practices as well as those practices that do not live
up to applicable international standards.
The questionnaire begins by presenting the scope of the research project and then defines the
terminology used, in particular what is understood, for the purpose of this study, by PTD and
alternatives to PTD. The principle objective of the questionnaire was to gather the following:



General information about the country, its legal system and most importantly, the costs
of implementing PTD;
Statistical information for the years 2000, 2009, 2010 and 2011 concerning PTD and its
alternatives; and
Specific safeguards provided in each country at different stages of PTD, namely when
ordering placement in PTD, when executing PTD and during the judicial review process,
if any.
Furthermore, the questionnaire gives special consideration to particularly vulnerable groups. A
number of other issues, such as state-funded legal aid, psychiatric detention and detention
ordered for national security offences are also briefly considered.
Based on NGO responses to the questionnaires, the HHC compiled the present study, which
outlines the legislation and practices of countries in the CEE-FSU region with respect to pre-trial
detention and its alternatives.
This study examines the following aspects of pre-trial detention:
 Living conditions while in detention
 Rights while in PTD (access to a lawyer, translator)
 Vulnerable groups
 Procedural requirements when ordering PTD
 Duration of PTD
 Review of pre-trial detention
 Appealing PTD
 Deduction/compensation for time spent in PTD
6


State-funded legal aid
Advocacy tools that have proved efficient in working on PTD reform
For each of these aspects the study identifies the applicable international standards, as specified
in both Council of Europe and United Nations body of principles, rules and jurisprudence. The
study then examines the data collected in light of these international standards: first, the particular
legal authorities that regulate a given issue in CEE-FSU countries and second, the way these laws
play out in practice. Where appropriate, the study also highlights relevant examples of specific
practices, both positive and negative, from a range of countries.
1.3. International workshop
As part of the implementation of this project, the HHC organized a three-day workshop building
on the key findings of the research. The workshop took place in Budapest between 28-30
November 2012.
Fourty-one experts participated in the workshop, including representatives of the NGOs that
worked on country-specific research, SC members, OSF experts and staff members and HHC
staff. The event also brought together a number of international experts on PTD.
The workshop focused primarily on the results of the study and the research process. It drew
extensively on a comparative analysis of the countries form the CEE-FSU region and also
highlighted concrete examples from particular countries. Comments and suggetsions received at
the workshop were incorporated into the present study.
In addition to discussing the study and its methodology, the workshop explored ongoing debates
surrounding PTD practices and potential avenues of NGO participation in reform efforts. It
examined how strategic litigation and detention monitoring can be applied to promote reform.
The workshop also drew on examples of reform and methods of promoting reform from both
the CEE-FSU region and globally— within the context of the Global Campaign on PTD.
On the final day, participants worked in three thematic groups discussing concrete ways in which
to influence policy and legislative reform in relation to PTD. The main findings from these
discussions were:
a) Group one: Changing judicial attitudes and promoting the use of alternatives to PTD
This group explored ways in which to change judicial attitudes in applying PTD and alternatives
to PTD. The main ideas that came out of the discussion were:
- The necessity of familiarizing judges with detention conditions through visits to detention
facilities
- The benefits of having judges with experience as lawyers, so as to expose them to the
other side of the “bench”
- The need to involve more actors, such as media, civil society and the Constitutional
Court, in lobbying for alternatives to PTD
- The benefits of lectures, studies, and study-visits
- The need to create institutional incentives against the use of PTD, and deterrents for the
excessive use of PTD.
7
b) Group two: Obtaining statistical data
This group explored ways in which to obtain more accurate statistical information concerning the
use of PTD and alternatives to PTD. The main ideas that came out of the discussion were:
- The need to identify a fixed set of data that is easily kept and comparable.
- The benefits of using online platforms to store this data
- The need to partner with external bodies in lobbying for this data to be released
- The need to make use of access to information laws to convince state officials to keep
data of public interest and share it
c) Group three: Implementing international jurisprudence
This group explored ways in which to implement international jurisprudence into national
legislation and practice. The main ideas that came out of the discussion were:
- Training to various target groups (journalists, decision-makers) can be effective in raising
awareness on international standards, prison and particularly PTD conditions
- Training of judges of different levels – both judges of first and second instance – proved
to be an efficient tool.
- Pre-accession countries often rely heavily on the potential critics from “Brussels”; this
can be an efficient tool to implement European jurisprudence and apply European
standards.
- Strategic litigation is a good and sometimes an effective tool; it can, however, be
expensive and time consuming.
- NGOs might participate in the meetings of key stakeholders (i.e. ombudpersons, or
parliamentary commissions responsible for human rights issues) and share international
experiences, standards, and jurisprudence; different levels of cooperation might be an
effective tool for promoting international standards.
1.4. Terms and definitions
The following terms and definitions were used for the purposes of this study
Total prison population – Total number of adult and juvenile prisoners (including pre-trial
detainees) on 1 September (or nearest available date – if different from 1 September, please
specify). Including offenders held in Prison Administration facilities, police detention facilities,
other facilities and juvenile offenders' institutions. Psychiatric detention and detention relating to
national security offences will not be counted in the total prison population as they will be dealt
with separately.
PTD – for the purpose of this study we shall consider PTD any period in which a person is
deprived of their liberty, on the basis of an order by a competent national authority, before a final
and definitive judgment is passed on the given person’s responsibility for violating a legal norm.
This encompasses any period of detention, before, during and after trial proceedings, even after
the first instance decision until the decision becomes final and definitive. It applies to any form of
detention, including criminal, petty offence and administrative. Synonyms for PTD are:
preventive detention and remand in custody. It does not apply to short term custody and to
detention following a final and definite judgment. Psychiatric detention and detention relating to
national security offences will not be counted as they will be dealt with separately
8
Alternatives to PTD – any non-custodial measures applied before the passing of a final and
definitive judgment. It can include, but is not limited to the following:
 undertaking not to interfere with the course of justice;
 undertaking not to engage in particular conduct (such as: consuming drugs or alcohol,
carry a weapon, driving vehicles, not to exercise a certain job);
 guarantees from an entity or person;
 supervision by an agency or designated individual;
 obligation to report to the police and/or judge;
 electronic monitoring;
 requirement not to reside at a specific address/not to change residence without
permission;
 requirement to surrender one’s passport or other identification documents;
 bail (securing financial or other forms of guarantees as to conduct pending trial);
 requirement to undergo medical or other treatment;
 house arrest;
 victim-offender mediation;
 restraining order;
 conditional suspension of PTD
Short term custody – Detention following initial police arrest for which no detention order has
been issued by a competent authority.
Psychiatric detention – Detention for offenders with psychological and/or psychotic disorders
who were considered as non-criminally liable by the court, held in psychiatric institutions,
hospitals or special sections inside penitentiary institutions
Criminal charge – In determining whether certain charges are criminal or not please consider
the following criteria: the classification in domestic law, the nature of the offence, the purpose of
the penalty and the nature and the severity of the penalty. Please note that if the penalty for an
offence is deprivation of liberty that offence is generally considered criminal, irrespective of how
it is defined domestically. Also, when a sanction is meant to be a form of punishment then the
offence is generally considered criminal and not administrative.
2. Statistical data
It should first be noted that collecting data and presenting it in a comparable manner is a very
challenging task, especially when the research concerns criminal statistics. Numerous factors exist
which pose significant hardships. Most importantly, countries often adopt different definitions
and emphasize different indicators when collecting and publishing data. Accordingly, though
national researchers were provided with the applicable definitions of the relevant terms, most
importantly detention and pre-trial detention (“PTD”), it was sometimes impossible to deduce
comparable data from official statistics. Secondly, counties also employ different start and end
dates for data collection. The national researchers in this study were asked to report data as of 1
September of each year. However, many indicated that data was available only as of 31 December
or 1 January. As a result, it proved difficult to obtain comparable data. Consequently, all
statistical data should be read and interpreted with caution.
Nonetheless, it is still critical to collect and compare data on PTD. This data allows for an
overview of the criminal justice system and its policies. It is also very useful in identifying
problems and advocating for solutions in terms of the use of PTD. Moreover, despite all the
obstacles encountered in collecting and comparing the relevant information, the resulting
9
statistics still have a lot to say about the basic characteristics of PTD systems and penal policies in
the countries examined. It is safe to conclude the following: Pre-trial detainees still represent a
significant portion of the prison population in Central and Eastern Europe and in the countries
of the former-Soviet Union: the exact percentage ranged from 10 to 40 percent in 2011.
Alternatives to pre-trial detention are underused in the region, despite the high costs PTD
represents for national budgets. It is a deeply worrying trend – though not a new one – that
courts approve the motions of police officers and prosecutors to order PTD almost
automatically, without assessing the individual circumstances of the case. In every country
studied the ratio of these motions approved is higher than 80 percent, in some cases even 90
percent or higher. Detailed and more inclusive data are presented in the charts below. Where data
was unavailable from a particular country, it has been indicated below the respective table or
figure.
Figure 1: Total population of detainees 2009-2011
200,000
180,000
160,000
140,000
120,000
100,000
80,000
60,000
40,000
20,000
0
KZ
RO
GE
CZ
HU
BG
RS
LT
MD
AL
XK
ME
2009 864,200 145,946 116,340 84,736
RU
UA
TR
PL
59,141
27,028
20,197
21,853
15,360
10,093
11,930
8,655
6,612
4,482
1,848
1,279
2010 871,283 147,716 120,814 80,482
62,997
28,191
23,219
21,914
16,328
10,662
11,211
9,139
6,304
4,779
1,539
1,135
2011 819,300 154,027 128,604 81,099
55,552
26,278
24,187
22,964
17,210
11,154
11,094
9,920
6,286
4,705
1,918
1,135
Figure 1 indicates the total number of persons detained, including both convicted and pre-trial
detainees, but also individuals subjected to other types of detention. The country with the highest
number of detainees is Russia by far (819,300 persons in 2011), though it should be added that
their numbers seem to be decreasing. Ukraine and Turkey likewise had a detention population of
over 100,000 in all three years examined, and statistics show that the number of detainees in these
countries is unquestionably rising. Kosovo and Montenegro have the lowest number of detainees,
both under 2,000. These statistics were weighed against the size of the population for the year
2011 in Figure 2 more indicative of relative detention rates.
10
Figure 2: Number of detainees per 100,000 inhabitants in 2011
700.00
600.00
572.54
541.19
500.00
400.00
337.87 336.46
308.94
300.00
218.02 211.75
183.06 176.55 172.34 172.10
166.15
200.00
153.20 151.45
137.99
110.04
100.00
0.00
RU
GE
KZ
UA
LT
CZ
PL
ME
MD
HU
TR
AL
RS
BG
RO
XK
Figure 2 indicates the number of detainees per 100,000 inhabitants for year 2011. Correlating
detention rates with population size reveals a markedly different picture. While Russia still leads
the region with 572.5 detainees per 100,000 inhabitants, Georgia follows close behind with 541
detainees per 100,000 residents. The following three countries lock up more than 300 persons for
every 100,000 inhabitants: Kazakhstan (337.9), Ukraine (336.5) and Lithuania (308.9). The
countries with the lowest number of persons locked up relative to the size of the population are
Serbia (153), Bulgaria (151), Romania (138) and Kosovo (110).
Figure 3: Total population of pre-trial detainees 2009-2011
60,000
50,000
40,000
30,000
20,000
10,000
0
UA
PL
KZ
HU
RS
CZ
BG
AL
LT
MD
XK
ME
2009 130,441 59,759
RU
TR
32,173
9,939
8,298
4,502
2,601
2,415
1,977
1,507
1,208
1,294
494
719
2010 118,122 34,238
33,238
8,746
7,903
4,803
3,332
2,443
2,342
2,010
1,196
1,187
491
561
2011 107,289 35,987
31,739
8,568
6,757
4,875
3,109
2,566
2,361
1,948
1,347
1,096
622
487
Data not available: Georgia and Romania.
Unsurprisingly, the countries with the highest and lowest absolute numbers of pre-trial detainees
overlap those with the highest and lowest total prison population with only minor changes in the
order. However, looking at this data for year 2011 relative to the size of the population reveals
significant differences.
11
Figure 4: Number of pre-trial detainees per 100,000 inhabitants
90.00
80.00
78.54
74.97
69.33 68.79
70.00
60.00
48.82 48.16
50.00
42.93 41.95 41.10
35.69
40.00
32.06 30.78
30.00
24.36 22.37
20.00
10.00
0.00
ME
RU
UA
AL
HU
TR
RS
LT
KZ
XK
BG
MD
CZ
PL
Data not available: Georgia and Romania.
Montenegro tops the list, with 78.5 persons held in PTD for every 100 000 inhabitants; Russia,
Ukraine and Albania follow closely. The relative number of those detained without a conviction
is lowest in the Czech Republic and Poland. Thus, though the Czech Republic was leading the
middle of the pack with regards to the relative number of total detainees, it comes second to last
when examining the number of pre-trial detainees relative to the size of the population.
Figure 5: Ratio of pre-trial detainees in the total detention population
60.00%
50.00%
40.00%
30.00%
2009
20.00%
2010
10.00%
2011
0.00%
Data not available: Georgia and Romania.
Figure 5 mirrors the findings of Figure 4. The relative number of PTD prisoners is highest in
Montenegro and Albania, where the number of persons detained without a final judgment by a
competent court is above 40 percent. The countries with the lowest ratio are the Czech Republic
and Poland, with figures just above 10 percent. In the European Union as a whole, the same
figure was 21% in 2010/2011.1
Council of Europe Annual Penal Statistics (SPACE I), Percentage of pre-trial detainees in the EU prison
population 2010/11 available at
1
12
Figure 6: Cost of PTD per person per day
Cost of PTD per person per day Years
Countries
2009
Czech Republic
34,81 €
Kosovo
30,00 €
Hungary
28,00 €
Russia
N/A
Poland
17,72 €
Albania
15,60 €
Lithuania
16,61 €
Turkey
10,75 €
Kazakhstan
6,40 €
Moldova
6,31 €
Ukraine
1,26 €
2010
33,32 €
30,00 €
27,00 €
21,92 €
18,60 €
17,50 €
14,24 €
14,33 €
8,30 €
6,46 €
1,63 €
2011 3 years AVG
30,75 €
32,96 €
30,00 €
30,00 €
26,00 €
27,00 €
21,92 €
21,92 €
19,14 €
18,49 €
19,80 €
17,63 €
13,67 €
14,84 €
18,36 €
14,48 €
8,00 €
7,57 €
7,25 €
6,67 €
1,73 €
1,54 €
Data not available: Georgia, Russia and Kosovo
Analyzing the cost of PTD is a crucial point in the debate over alternative measures to PTD. The
per diem costs of PTD per person vary considerably. In the Czech Republic the money spent on
pre-trial detainees is more than 30 euros per day, while in Ukraine this amount is only 1.5 euros.
Table 1: Number of motions for placement in pre-trial detention filed and approved
(2011)
Country
Filed
Approved
Bulgaria
4,706
3 866
Czech Republic
4,587
N/A
Georgia
6,948
6,558
Hungary
6,245
5,712
Kazakhstan
14,246
13,404
Moldova
3,306
2,674
Poland
25,452
22,748
Romania
10,564
8,982
Russia
152,028
135,850
Ukraine
45,700
39,700
http://ec.europa.eu/justice/newsroom/criminal/opinion/files/110510/appendix_1_-_pretrial_detention_statistics_en.pdf
13
Table 2: Motion success rate
Country
2009
2010
2011
Bulgaria
83.37%
84.01%
82.15%
Czech Republic
0.00%
0.00%
0.00%
Georgia
94.10%
92.56%
94.39%
Hungary
93.81%
92.60%
91.47%
Kazakhstan
97.84%
95.00%
94.09%
Moldova
83.98%
85.61%
80.88%
Poland
89.43%
89.77%
89.38%
Romania
87.52%
86.22%
85.02%
Russia
N/A
89.94%
89.36%
Ukraine
86.70%
87.83%
86.87%
Data not available: Albania, Kosovo, Montenegro, Serbia and Turkey.
Tables 1 and 2 indicate an extremely worrying tendency. These numbers suggest that courts are
likely to approve all motions for placement in PTD submitted automatically. Statistics from
Hungary, Georgia and Kazakhstan are particularly shocking. In all three countries, the ratio of
approved motions for placement in PTD was higher than 90 percent. Decreases in this trend can
be clearly identified only in Romania.
However recent reports from Georgia suggest that this may also be the case there. The Georgian
Young Lawyers’ Association (GYLA), whcich routinely monitors court hearings noticed a change
since the parliamentary elictions from October 2012 in Georgia.2 GYLA detected, for the first
time since it began monitoring court hearings, cases when the court rejected he prosecution’s
motion for pre-trial detention and instead granted bail. Also, there were cases in which the court
set bail at an amount less than what was requested by the prosecution, which is also very unusual.
In Lithuania the state only keeps data on the aggregate number of both motions for placement in
PTD and for prolongation of PTD filed. Thus it is impossible to separate out data specifically
regarding how many motions for placement in PTD were filled in a given year. Notheless, the
success rate for both types of motions exceeded 95% in 2010 and 2011.
Table 3: Pre-trial detention lasting more than 1 year
Country
2000
2009
2010
2011
Czech Republic
2
0
0
12
Hungary
128
172
243
274
Montenegro
31
46
21
10
Poland
N/A
2,344 2,149
2,088
No data available from the rest of the countries surveyed.
2
“Monitoring criminal trials in Tbilisi and Kutaisi city courts” Monitoring report # 3, period covered: JulyDecember 2012, Georgian Young Lawyers’ Association
14
Unfortunately data was only obtainable in 4 of the countries surveyed. In the Czech Republic, in
2009 and 2010 there were no PTD detentions lasting for more than a year. However, there was
an unfortunate change in this trend in 2011, when 12 such detentions occurred. The study
revealed bad practices in Hungary and Poland, though the latter appears to be improving.
Statistics show that in 2011, 5.62 percent of pre-trial detainees in Hungary were kept in detention
for more than a year; this figure was 3.42 in Poland. Due to lack of data, it is impossible to
establish any general trends regarding long-term PTD rates in Central and Eastern Europe; this
would be a critical topic for further study.
74.97
Figure 7: Number of house arrests and pre-trial detainees per 100 000 inhabitants
80.00
40.00
2011 - House arrest per 100.000
person
30.78
32.06
50.00
41.10
48.82
60.00
41.95
70.00
30.00
2011 - PTD per 100.000 person
0.94
2.72
3.86
1.06
1.04
10.00
4.32
20.00
0.00
Data are not available from the rest of the countries.
Information regarding alternatives to PTD is largely unavailable, as official data either does not
exist or is hard to obtain. However, it is clear even from the data provided that alternatives to
PTD are underused in the countries represented. The most frequently ordered alternative
measure is house arrest – the likelihood remains much higher that an individual will be subjected
to PTD than house arrest. In Russia, this outcome is 75 times more probable, and in Hungary
and Kazakhstan, it is 40 times more likely.
15
3. Living conditions
3.1. Separating pre-trial detainees from prisoners
International standards
Both the Council of Europe3 and the United Nations4 have recognized the need to house pretrial detainees separately from convicted prisoners.
This is also set out in a special provision in the International Convenant on Civil and Political
Rights (“ICCPR”):
Article 10(1) All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
(a) Accused persons shall, save in exceptional circumstances, be segregated from
convicted persons and shall be subject to separate treatment appropriate to their status as
unconvicted persons;
The United Nations Human Rights Council (“HRC”) has interpreted this provision to conclude
that the failure to segregate a pre-trial detainee from a convicted prisoner can lead to a violation
of the ICCPR.5
The requirement to segregate pre-trial deteinees is linked to the fact that they are have not been
convicted of any offence and consequently enjoy the right to a presumption of innocence.6
Research results
In all of the countries participating in this study, the law provides that pre-trial detainees must be
held separately from the rest of the prison population. This requirement is generally observed;
Georgia was the only country where researchers indicated significant failures to observe this
requirement.7
In some countries, pre-trial detainees are kept in special sections of facilities which also hold
prisoners;8 in other countries they are kept in completely separate buildings;9 while still other
countries employ both separate institutions and special sections of prisons.10
3.2. Conditions of detention
International standards
According to the ECtHR, poor detention conditions may fall under the ambit of Article 3 of the
Convention, provided that a “minimum level of severity is achieved”.11 In that regard, wellestablished ECtHR case law calls on states to ensure that the individual is detained in conditions
Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules,
article 18.8 (a)
4 The Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, 1988,
principle 8; The Standard Minimum Rules for the Treatment of Prisoners, 1955 Art. 8.(b)
5 Albert Wilson v. Philippines, Communication No. 868/1999, 30 October 2003, para. 7.3; see also:Fongum GorjiDinka v. Cameroon, Communication No. 1134/2002, 17 March 2005, para. 5.3
6 Human Rights Commitee, General Comment No.21, Article 10, U.N. Doc. HRI/GEN/1/Rev.1 at 33 (1994), para
9.
7 saqarTvelos saxalxo damcveli, Public Defender of Georgia, special report of monitoring in penitentiary
establishments and pre-trial detention isolators, 1st half of 2011, pp. 216.
8 Bulgaria, Hungary, Romania, Serbia
9 Russia, Ukraine
10 Albania, Czech Republic, Kazakhstan, Lithuania, Poland, Turkey
11 Valašinas v. Lithuania, (Application no. 44558/98, Judgement of 24 July 2001),para 101
3
16
that correspond to a respect for human dignity and do not subject detainees to a degree of
distress exceeding the “unavoidable level of suffering inherent in detention”.12
Therefore, detention facilities must respect a number of requirements applicable to all detainees.
They should allow for natural light and fresh air in the rooms.13 Cells should respect the privacy
needs of the detainees and “meet the requirements of health and hygiene, due regard being paid
to climatic conditions and especially to floor space, cubic content of air, lighting, heating and
ventilation”.14Also, detainees should be provided with access to “sanitary facilities that are
hygienic and respect privacy”.15
Detainees should be given water and “food of nutritional value adequate for health and strength,
of wholesome quality and well prepared and served”.16 There should be three meals a day and the
food “shall be prepared and served hygienically”.17
Generally, people held in PTD should not be kept in worse conditions that convicted prisoners.
In a case against Slovakia, the European Court of Human Rights (“ECtHR”) found a violation of
Article 14 in conjunction with Article 8 as a result of the differential treatment of persons held in
PTD and convicted prisoners; unlike the convicted prisoners, pre-trial detainees were allowed
considerably less time for family visits and were granted no access to television, and this
difference in treatment could not be objectively justified.18
As regards the practise of the HRC, complaints about detention conditions are frequently
handled under Article 10 of the ICCPR.19 Nevertheless, aggravating factors may also lead to a
violation of Article 7, as the HRC has found on a number of occasions concerning: deprivation
of food and water for several days,20detainee locked up for 23 hours a day in a cell with no
sanitation, ventilation, adequate nutrition, or medical treatment,21 long periods of incommunicado
detention.22
Research results
Although all of the researchers characterized detention conditions in their countries as
substandard, some of them stated that conditions are equivalent for both pre-trial detainees and
for convicted prisoners,23 while others stated that detention conditions are worse for pre-trial
detainees. 24
Valašinas v. Lithuania, (Application no. 44558/98, Judgement of 24 July 2001), para 102; Kudła v. Poland,
(Application no. 30210/96, Judgement of 26 October 2000), para 94
13 Standard Minimum Rules for the Treatment of Prisoners [New York 1984]Rule 11
14 European Prison Rules [Recommendation Rec(2006)2 of the Committee of Ministers to member states on the
European Prison Rules] Rule 18.1
15 European Prison Rules [Recommendation Rec(2006)2 of the Committee of Ministers to member states on the
European Prison Rules] Rule 19.3
16 Standard Minimum Rules for the Treatment of Prisoners [New York 1984] Rule 20.1
17 Standard Minimum Rules for the Treatment of Prisoners [New York 1984] Rule 22.1
18 Laduna v. Slovakia (Application no. 31827/02, Judgement of 13 December 2011) paras 59-73
19 HRC, Madafferi v. Australia, Communication No. 1011/2001, 30 July 2004, para.9.3; HRC Kennedy v. Trinidad
and Tobago, Communication No. 845/1998, 26 March 2002, para 7.8; HRC, Griffin v. Spain, Communication No.
493/1992, 5 April 1995 , para 9.3
20 HRC, Tshiesekedi v. Zaire, Communications No. 241/1987 and 242/1987, 2 November 1989, para 13.b; HRC,
Miha v. Equatorial Guinea, Communication No. 414/1990, 10 August 1994,para.6.4.
21 HRC, Brown v. Jamaica, Communication No. 775/1997, 23 March 1999,para.6.13
22 HRC, Shaw v. Jamaica, Communication No. 704/1996, 2 April 1998, para.7.1; HRC, Polay Campos v. Peru,
Communication No. 577/1994, 6 November 1997,para.8.6
23 Albania, Lithuania, Poland, Romania, Turkey
24 Bulgaria, Czech Republic, Hungary, Moldova, Montenegro
12
17
Some of the reasons researchers gave for describing detention conditions as substandard relate
to:






lack of natural light25
lack of private bathroom facilities26
overcrowding27
lack of heating in the winter28
excessive heat in the summer29
restricted access to showers (once per week)30
Also, many of the researchers indicated that in their countries, the right to work is not prescribed
by law with regard to pre-trial detainees;31in the countries where it is prescribed, it is restricted32
or is generally not observed in practice due to lack of employment opportunities.33
In most countries surveyed, pre-trial detainees have a right to outdoor activity for one hour per
day,34 and in Kosovo and Serbia, pre-trial detainees are afforded 2 hours a day of outdoor
exercise.
However, in practice, at times this right is not always respected. In Georgia, pre-trial detainees
usually spent 40 minutes or less outside and are not allowed walks during the weekends.35
3.3. Space per detainee
International standards
The ECtHR has repeatedly held that that “where the applicants had at their disposal less than
three square metres of floor surface, the overcrowding was considered to have been so severe as
to justify in itself a finding of a violation of Article 3”.36 However, when considering a case
against Romania, the ECtHR agreed with the European Committee for the Prevention of
Torture (“CPT”) that the recommended living space for a detainee should be no less than 4
square meters.37
Research results
In most of the countries participating in this study, there is a significant gap between the amount
of space the law affords each detainee and the actual space that is generally allocated.38
The legal requirements vary widely. They range from 2.5 square metres,39 to 3 square metres,40 3.6
square metres,41 4 square metres,42 and 8 square metres.43
Bulgaria, Russia, Serbia
Bulgaria, Serbia
27 Albania, Bulgaria, Kosovo, Lithuania, Serbia, Russia
28 Kosovo, Serbia, Russia
29 Czech republic
30 Czech republic,. Hungary, Lithuania, Poland
31 Hungary, Kazakhstan, Montenegro
32 Moldova- no more than 2 hours per day and 6 hours per week
33 Georgia, Lithuania, Poland, Serbia
34 Czech Republic, Georgia, Hungary, Lithuania, Moldova, Montenegro, Poland, Romania.
35saqarTvelos saxalxo damcveli, Public Defender of Georgia, special report of monitoring in penitentiary
establishments and pre-trial detention isolators, 1st half of 2011, p. 30
36 Svetlana Kazmina v. Russia, Application no. 8609/04, 2 December 2010, para 70; Lind v. Russia, Application
no. 25664/05, , 6 December 2007. Para 59; Labzov v. Russia, Application no. 62208/00, , 16 June 2005, para 44;
Mayzit v. Russia, Application no. 63378/00, 20 January 2005, para 40
37 Jiga v. Romania (Application no 14352/04, Judgement of 16 March 2010) para 65
38 The only exception is Kazakhstan, but this country allows for a very little space per detainee., only 2.5m 2
39 Georgia, Kazakhstan, Ukraine (in Ukraine pregnant women and women with infants must be given at least 4m 2)
25
26
18
Bulgaria was the only country surveyed which lacked a legal requirement as to how much space
should be afforded someone held in PTD; in practice, Bulgarian detainees are generally allocated
somewhere between 2 to 3 metres of space.
Montenegro is the country which grants the most space per detainee: a total of 8 square
metres.44 The 8 m2 standard is generally not respected in practice, but the minimum standard of 4
m2 provided for by the CPT is respected in most cells where pre-trial detainees are held.45
Overcrowding in Montenegrin prisons was noted by the CPT in a 2008 report and prison
management conceded crowded conditions were the main obstacle in executing the country’s
legal standards.46 However, recent NGO reports have acknowledged that the number of
detainees held in PTD in Montenegro was halved in the past four years, so that in practice the
situation is much better than it used to be. Upon investigation in June 2012 of the prisons where
pre-trial detainees are held, it was discovered that these facilities were not fully occupied (with a
ratio of 283 detainees to 370 beds in Podgorica and 32 detainees to 50 beds in Bijelo Bolje).47
The lack of space is partially explained by the occupancy rates. In many of the countries
participating in this study, PTD facilities are overcrowded, as show by the table below:
Table 4: Occupancy rate of PTD facilities
2000
2009
2010
2011
Albania
N/A
141%
143%
143%
Bulgaria*
90%
110%
130%
130%
Czech Republic
N/A
94.08%
98.56%
104.74%
Hungary
165%
135%
142%
145%
Kazakhstan
N/A
48%
80%
42%
Lithuania
N/A
88%
76%
86%
Montenegro
N/A
236.11%
269.44%
91.35%
Poland**
N/A
103.8%
102.2%
98.5%
Russia
102.7%
79.9%
78.6%
88.2%
Ukraine
N/A
102.8%
106.4%
99.48%
Hungary (although for women and children it is 3.5 m2), Poland
Lithuania
42 Albania, Czech Republic, Kosovo, Moldova, Romania, Serbia
43 Montenegro. The Kosovar researchers provided information in cubic meters and in Kosovo the law imposes a
minimum of 8 cubic metres for each detainee.
44 Pravilnik o kućnom redu za izdržavanje pritvora, Zavod za izvršenje krivičnih sankcija Crne Gore,mart 1987,član 15 (The Rules
on House Order on Execution of Imprisonment, IECP, March 1987, article 15).
45 Izvještaj o poštovanju ljudskih prava pritvorenih lica i lica na izdržavanju kazne zatvora u Zavodu za izvršenje krivičnih
sankcija,Izvjestaj monitoring tima nevladinih organizacija,Podgorica, 15 jun 2012. godine, str. 71 (The Report on Human Rights
Protection of Deteinees and the Persons Convicted on Imprisonment in IECP, the Report of the Monitoring Team
of NGOs, Podgorica, 15 Jun 2012, p.71, available at http://www.hraction.org/wpcontent/uploads/Izvjestaj%20FINAL_15062012-1.pdf
46 Izvještaj o stanju i radu Zavoda za izvršenje krivicnih sankcija Crne Gore, strana 53 (The Report on Condition and Work of
IECP, p.53., available at: http://www.ziks.me/userfiles/Izvje%C5%A1taj%20o%20stanju%20i%20radu%20ZIKSa%20za%202010_godinu(1).pdf.
47 Izvještaj o poštovanju ljudskih prava pritvorenih lica i lica na izdržavanju kazne zatvora u Zavodu za izvršenje krivičnih
sankcija,Izvjestaj monitoring tima nevladinih organizacija,Podgorica, 15 jun 2012.godine, str. 50, (The Report on Human Rights
Protection of Deteinees and the Persons Convicted on Imprisonment in IECP, the Report of the Monitoring Team
of NGOs, Podgorica, 15 June 2012, p.50, available at http://www.hraction.org/wpcontent/uploads/Izvjestaj%20FINAL_15062012-1.pdf
40
41
19
*The data from Bulgaria is an estimation made by our researchers.
**For Poland, all data is provided as of the first day of a year and concerns the population of all penitentiary units –
detention centres as well as prisons.
*** The countries not included in the chart did not provide any information.
The graph below shows the same data in a comparative manner.
Figure 8
300
250
200
2000
150
2009
100
2010
2011
50
0
3.4. Frequency of “incidents”
In addition to substandard living conditions, detainees are also exposed to physical violence at
the hands of other detainees or detention officers themselves.
Table 5
2009
2010
2011
By other
detainees
By
Country
By
guards
guards
By other
detainees
By
guards
By other
detainees
Albania
0
0
0
0
0
0
Bulgaria*
5-20
10-100
5-30
10-100
10-30
10-100
Kazakhstan
1
7
1
32
N/A
N/A
Lithuania**
N/A
N/A
<2
<2
<3
<3
Montenegro N/A
1
3
4
N/A
4
Poland
1
63
2
47
3
N/A
Serbia***
N/A
362
N/A
387
N/A
438
Turkey
N/A
4
N/A
1
N/A
2
Total
2
437
8
473
6
447
*The data for Bulgaria is an estimation made by our researchers
20
**In Lithuania, the only data available was the total number of assaults; no data was available distinguishing assaults
carried out by guards from those committed by other detainees. The sign “<” means “smaller than”
*** In Serbia, the following data regarding the number of assaults carried out by guards encompasses all persons
deprived of liberty, not only those held in PTD:



In 2009 – Use of means of coercion against prisoners, total incidents – 1490.
Broken down by means of coercion: Physical force- 245; Isolation and restraint – 936; Rubber truncheon –
303; Chemical means – 5; Fire arms – 1
In 2010 – Use of means of coercion against prisoners, total incidents – 1213.
Broken down by means of coercion: Physical force – 192; Isolation and restraint – 809; Rubber truncheon
– 210; Chemical means – 1 Fire arms – 1
In 2011 – Use of means of coercion against prisoners, total incidents -– 1122.
Broken down by means of coercion: Physical force – 198; Isolation and restraint – 745; Rubber truncheon
– 179; Chemical means – 0; Fire arms – 0
**** No data was available from countries not included in the chart.
Another telling aspect of detention conditions may be the suicide rates of detainees. The chart
below indicates the number of suicides, as well as the total number of deaths that occurred
among the incarcerated in the countries participating in this study in the relevant years.
Table 6
2000
2009
2010
2011
Country
Suicides Deaths Suicides Deaths
Suicides Deaths Suicides Deaths
Albania
N/A
N/A
1
10
0
8
0
13
Czech
Republic
6
4
6
4
3
2
6
2
Hungary
5
6
2
14
5
9
4
6
Kazakhstan
N/A
N/A
N/A
44
N/A
25
N/A
14
Lithuania
3
N/A
4
6
0
0
2
6
Moldova
N/A
0
6
38
5
44
7
49
Poland*
46
57
41
84
N/A
91
16
102
Serbia
N/A
N/A
13
76
6
69
N/A
N/A
Turkey
23
154
37
151
38
213
31
235
Ukraine
N/A
N/A
8
180
9
218
8
236
Total
83
221
118
607
66
679
74
663
* In Poland, data was also available regarding the number of attempted suicides: In 2000: 222, in 2009: 211, in 2010:
221 and in 2011: 199.
** No data was available from countries not included in this chart.
The following diagram shows in comparative perspective how many deaths and suicides occurred
in the region’s prisons during the years 2010 and 2011.
21
Figure 9
250
200
150
2010 - Suicides
2010 - Deaths
100
2011 - Suicides
2011 - Deaths
50
0
3.5. Speedy conduct of investigation
International standards
There is a clear obligation under Article 5(3) of the European Convention on Human Rights
(“ECHR”) that anyone held in PTD has the right to a trial within a reasonable time period. This
right is also established in Article 9(3) of the ICCPR.
Research results
A number of countries participating in this study have a specific provision requiring that
investigations concerning persons held in PTD be conducted in an expeditious manner.48 For
example, in Hungary, a fast track system is in place for persons held in PTD.49
3.6. Complaints about physical detention conditions
International standards
According to the Minimum Rules for the Treatment of Prisoners,50 every prisoner should have
the “opportunity each week day of making requests or complaints to the director of the
institution or the officer authorized to represent him” [Article 36(1)]. Such complaints must be
made confidentially [Article 36(3)] through both internal and external complaints mechanisms
[Article 36(2)] and they should be “dealt with and replied to without undue delay” [Article36(4)].
Czech Republic, Georgia, Hungary, Kazakhstan, Moldova, Montenegro
Act XIX. of 1998 on Criminal Proceedings, Sec 136(1)
50 Standard Minimum Rules for the Treatment of Prisoners [New York 1984] Rule 36 – As explained in art. 3 – the
above provision applies to all categories of prisoners, criminal or civil, untried or convicted, including prisoners subject to "security
measures" or corrective measures ordered by the judge
48
49
22
As explained by the CPT,51 this right is an important safeguard against ill-treatment in prisons
and should be coupled with regular visits by independent actors to places of detention; these
visits should offer detainees the possibility to submit complaints and have those complaints acted
upon.
The ECtHR has indicated that in cases relating to allegations of inadequate conditions of
detention, the burden of proof does not necessarily rest on the complainant but on the
government, which must produce convincing evidence to refute the applicant’s allegation; a
failure to do so would benefit the applicant.52
Research results
In all of the countries participating in this study, the law provides for complaints about prison
conditions. Most commonly, detainees may complain about prison conditions to prison
authorities,53 or to prison monitoring institutions, such as the NPM. Prisoners may also complain
to outside bodies, such as an ombudsperson,54 prosecutor’s office, national courts55 and
international courts like the ECtHR.
For example, in Montenegro a detainee may communicate with the president of the court, as
well as with the investigating judge designated by the president of the court. 56 The detainee may
also communicate with the ombudsperson. The ombudsperson has a right to speak with any
person deprived of liberty privately, without the presence of any prison official. The detainee has
the right to submit a complaint in a closed envelope, which shall be delivered directly to the
ombudsperson.57 As of 14 February 2012, detainees and convicted persons may submit
complaints directly to the ombudsperson via drop boxes installed in each prison facility. Only the
ombudsperson’s representatives have the keys to these boxes.58 There were six complaints in
2011, four complaints in 2010, and in 2009, there were no complaints regarding the length of the
court procedure. There is no data available for 2000.59
In Georgia, a pre-trial detainee may lodge a complaint with a public defender, the penitentiary
department, various NGOs or a court about the conditions of detention. There are drop boxes at
penitentiary departments60 for detainees’ complaints. It is the responsibility of the prison
administration to forward a complaint to its addressee within 48 hours. Complaints regarding
torture and inhumane and degrading treatment fall into the category of extraordinary cases and
must be examined immediately. The chief of the establishment or an individual authorized by
him/her and/or a special preventive group must be informed within 24 hours about a complaint
regarding torture or inhumane and degrading treatment.61 However, this does not happen in
practice: investigations into alleged ill-treatment are frequently not launched at all; even those that
are launched are often prolonged infinitely. Thus, in practice as far as our Georgian researchers
were able to ascertain, a pre-trial detainee has never received pecuniary compensation for a
violation of the conditions of detention.
2nd General Report of CPT [CPT/Inf (92)3] § 54
Glotov v. Russia (Application no. 41558/05, Judgement of 10 May 2012) para 22
53 Czech Republic, Hungary, Kazakhstan, Kosovo, Montenegro, Poland, Romania, Russia, Ukraine
54 Hungary, Lithuania, Moldova, Russia, Serbia
55 Albania, Moldova, Montenegro, Poland, Romania, Russia, Turkey, Ukraine, Serbia
56Zakonik o krivičnom postupku, Službeni list CG br. 57/09 i 49/10, član 185, paragraph 3 (The Law on Criminal
Procedure, Official Gazette of Montenegro, no.57/09 i 49/10, article 185, paragraph 3).
57 The Protector of human rights and freedoms, Competences, available at:
http://www.ombudsman.co.me/nadleznosti.htm.
58 IECP of Montenegro, cover page, available at: http://www.ziks.me/index.php.
59The Protector of human rights and freedoms, Reports, p. 54,51,61,available at:
http://www.ombudsman.co.me/izvjestaji.php;
60 Article 100 of the Code of Imprisonment
61 Article 105 of the Order N97, Regulations of Detention establishment
51
52
23
This seems to be the case in most of the countries surveyed, as it seems that in practice most
complaint mechanisms provide little to no recourse for improving prison conditions or awarding
compensation.62 The one mechanism which seems to allow for successful compensation claims
seems to be the ECHR.63
This is so even in those countries where many complaints regarding prison conditions are lodged.
In Poland around 40% of the complaints filed with the General Prosecutor’s Office related to
prison conditions; overcrowding was the most common subject of these complaints; other
complaints focused on access to healthcare services, restrictions on participation in cultural and
educational classes, conditions preventing preservation of intimacy, as well as other living
conditions. Proceedings of this type constitute the largest group of cases registered by the
General Prosecutor’s Office in 2011 (1.799 out of 4.478 new court actions registered in the
General Prosecutor’s Office). In previous years, prisoners’ complaints constituted a similarly high
percentage of total cases: in 2010, they constituted 1,662 of 4,715 total cases, while in 2009, they
constituted 940 of 2,636 total cases.
4. Rights while in PTD
The CPT has stated that the rights afforded to detainees would be “of little value if the persons
concerned are unaware of their existence”.64 Consequently, according to UN Resolution 43/173,
at the moment of arrest, or promptly thereafter, the person who is detained must be provided by
the “authority responsible for his arrest, detention or imprisonment, respectively, with
information on and an explanation of his rights and how to avail himself of such rights”. 65 A
detainee should also be informed of the legal procedure applicable to their particular case.66 This
information should be provided both in written form and orally in a language the detainee
understands.67
The ECtHR has further specified that all information should be communicated to the detainee
using “simple, non-technical language”.68 The overriding consideration is that the person affected
must understand what is happening to him or her; therefore the authorities must always take into
account the specific capacities of an individual when determining the sufficiency of a given
method of communication.69
This is also the position of the European Union, which, in considering the obligation of member
states to inform criminal suspects of their rights, stresses that such information must “be given
orally or in writing, in simple and accessible language, taking into account any particular needs of
vulnerable suspects or vulnerable accused persons”.70
Albania, Bulgaria, Czech Republic, Kazakhstan, Kosovo, Lithuania, Moldova, Russia, Ukraine
Bulgaria, Hungary, Moldova, Ukraine
64 12th General Report of CPT [CPT/Inf (2002)15], para 44
65 United Nations General Assembly Resolution 43/173 of 9 December 1988 Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment, Principle 13
66 European Code of Police Ethics (Recommendation (2001) 10 of the Committee of Ministers to member states on
the European Code of Police Ethics adopted by the Committee of Ministers on 19 September 2001 at the 765th
meeting of the Ministers' Deputies), para 55
67 European Prison Rules [Recommendation Rec(2006)2 of the Committee of Ministers to member states on the
European Prison Rules], rule 30.1; see also Standard Minimum Rules for the Treatment of Prisoners [New York
1984], rule 35
68 ECtHR Fox, Campbell and Hartley v the UK, Judgment of 30 August 1990, para. 40.
69 Monica Macovei, A guide to the implementation of Article 5 of the European Convention on Human Rights (Council of
Europe, 2002), p. 47, available at <http://echr.coe.int/NR/rdonlyres/D7297F8F-88DB-42B0-A831FB4D1223164A/0/DG2ENHRHAND052004.pdf> last accessed 10-04-2012.
70 Directive 2012/13/EU of the European Parliament and of the Council, of 22 May 2012; on the right to information in
criminal proceedings, art. 3.2
62
63
24
4.1. Access to counsel
International standards
The right to legal assistance is recognized by both the ECHR in Article 6(3)(c) and the ICCPR in
Article 14(3).
This right has also been recognized in the jurisprudence of the HRC and the ECtHR. The HRC
stated in a case against Hungary that “legal assistance should be available at all stages of criminal
proceedings”, and in applying this principle,, the courtfound a violation of Article 14(3)(d)
because the detainee was not granted effective access to a lawyer during PTD. 71 The HRC
similarly found a violation of Article 14(3)(b) in a case where the petitioner asked to speak to his
lawyer while in PTD and was denied this right.72
Moreover, the HRC has previously stated that the right to a lawyer is enshrined in Article 9(3) of
the ICCPR, finding a violation of this article where the petitioner was not provided with legal
representation during pre-trial detention.73
The ECtHR has also affirmed the right to access to legal counsel during PTD, emphasizing the
right of an accused to “be able to obtain legal assistance as soon as he they are placed in custody
or pre-trial detention”.74 This has been the position of the ECtHR for many years, and since
2008, a series of decisions have further developed this requirement, holding thatthe right to legal
assistance begins when a person is placed in custody and that no person shall be interrogated or
required or invited to participate in investigative or procedural activities without the right to first
access legal assistance.75 However, in a 2012 case the ECtHR stipulated that the lack of access to
counsel does not in itself lead to a violation of Article 5(1) where the detainee asserts a claim that
the deprivation of liberty was illegal.76
Research results
In all of the countries participating in this study, a detainee has the right to a lawyer. According to
the national researchers, this right is generally observed in practice. Some have indicated,
however, that a number of problems exist with regards to state-funded legal aid, mostly relating
to the quality of legal services provided under the legal aid scheme.77 For more information on
legal aid please seethe legal aid section of this study.
4.2. Access to medical services
International standards
According to a UN resolution, after admission to a place of detention, the detainee should be
offered a medical examination free-of-charge and as promptly as possible.78 Additionally,
according to the CPT, all detainees have the right to access a doctor while in detention; requests
for a medical examination should not be blocked by police officers, and these examinations
HRC, Mr. Rostislav Borisenko v. Hungary, Communication No. 852/1999, para 7.4 – In this case the state party
assigned a lawyer to the author but the lawyer failed to appear at the interrogation or at the detention hearing
72 HRC, Gridin v. Russian Federation, CCPR/C/69/D/770/1997, para 8.5
73 HRC, Umarova v. Uzbekistan, CCPR/C/100/D/1449/2006, para. 8.5
74 ECtHR, Dayanan v. Turkey, Application no. 7377/03, 13 October 2009 para 31; see also: Brusco v. France,
Application no 1466/07, 14 October 2010, para 45
75 For more information on the right to a lawyer please see: Template Brief Issue #1, Early Access to Legal
Assistance
Legal Brief prepared by Open Society Justice Initiative, available at: http://www.soros.org/sites/default/files/legaltools-early-access-20120424.pdf
76 Carine Simons v Belgium (Application number 71407/10, Decision of 28 August 2012) para. 33 – in French only
77 Hungary, Lithuania, Kosovo, Moldova, Poland, Russia, Ukraine
78 United Nations General Assembly Resolution 43/173 of 9 December 1988 Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment. Principle 24
71
25
should be carried out outside of the observation of law enforcement officials, unless the doctor
requests otherwise.79
The medical practitioner who examines a detainee should observe the rules of confidentiality and
should record and report “to the relevant authorities any sign or indication that prisoners may
have been treated violently”.80
Detainees requiring specialist treatment should be “transferred to specialized institutions or to
civil hospitals”.81 Detainees also have a right to request a doctor of their own choosing.82
Research results
In each of the surveyed countries, pre-trial detainees are afforded the right to medical treatment.
However, in practice, a number of unresolved issues impede detainees’ access to treatment.
Many of the researchers highlighted the poor quality of the medical services generally provided to
detainees.83 In Poland, for example, the inadequacy of medical treatment is one of the most
common subjects of inmates’ complaints.
Another recurring issue was the lack of qualified medical personnel in prisons.84 For instance, in
Bulgaria medical services are usually provided by paramedics. Also, in some countries, even
though a medical doctor is available to prisoners, he/she does not work permanently as a fulltime doctor in these facilities;85 these prisons instead rely upon nurses to provide most medical
services.86
In some of the countries, medical check-ups are not carried out regularly or are carried out only
by request, and the approval procedure for such requests is lengthy.87 Additionally, in Turkey, our
researchers indicated that handcuffs are not removed during medical examinations and treatment
and security forces remain present in the examination room.
Conditions are even worse when a detainee must be transferred in order to access medical
services, because these services are not available or are inadequate at the place where he/she is
held. Lengthy approval procedures for a transfer can be a major obstacle in these situations, 88 as
can lengthy wait times in police wagons during the transfer.89
Still other problems arise regarding the way medical records are kept. Some researchers indicated
that in their countries, prison medical records are frequently kept in an improper manner; they
cited a lack of data in prisoner medical files,90 or even that detainees do not have access to their
own medical records, except upon a formal request submitted by a lawyer.91
12th General Report of CPT [CPT/Inf (2002)15], para 42
European Prison Rules [Recommendation Rec(2006)2 of the Committee of Ministers to member states on the
European Prison Rules], rules 42.3 (c)
81 Standard Minimum Rules for the Treatment of Prisoners [New York 1984]
Rule 22
82 European Code of Police Ethics (Recommendation (2001) 10 of the Committee of
Ministers to member states on the European Code of Police Ethics adopted by the
Committee of Ministers on 19 September 2001 at the 765th meeting of the Ministers'
Deputies), para 57
83 Lithuania, Moldova, Russia, Serbia
84 Albania, Bulgaria, Russia, Serbia.
85 Serbia, Turkey
86 Serbia
87 Kosovo
88 As is the case in Serbia, Ukraine
89 As is the case in Turkey
90 Albania
91 Georgia
79
80
26
Access to dental services can also be problematic in many countries because of the lack of
qualified personnel.92
4.3. Access to family members
International standards
Detainees have the right to have the fact of their detention communicated to a third party, such
as a family member or friend.93 This right arises “promptly after arest and after each transfer from
one place of detention or imprisonment to another”.94
Additionally, while in detention, detainees have a right to communicate as often as possible by
letter, telephone or other forms of communication with family members, though there may be
some restrictions on this right “for the requirements of continuing criminal investigations,
maintenance of good order, safety and security, prevention of criminal offences and protection of
victims of crime”.95
With respect to detainees whose families live far away, the CPT stresses the need for flexibility
with regards to the conditions that apply to their visits, emphasizing that “such prisoners could
be allowed to accumulate visiting time and/or be offered improved possibilities for telephone
contacts with their families”.96 Additionally, “if a detained or imprisoned person so requests, he
shal,l if possible, be kept in a place of detention or imprisonment reasonably near his usual place
of residence.”97
Research results
All of the countries participating in this study allow for family visits. In practice, the degree of
observance of this right varies widely.
Some countries allow only one visit per month;98 others allow for more frequent visits, such as
two visits a month,99 four visits per month,100 or one visit per week.101 In some countries the head
of the detention unit has discretion to allow for more visits 102 or to limit these visits. 103
Additionally, some countries allow for special conditions for juveniles; in Kazakhstan, minor
detainees can have three visits per month (adults are allowed only two), while in Albania they can
have eight visits per month (compared to only four for adults).
The visits are supposed to take place in special meeting rooms, but at timesPTD facilities lack
these rooms, 104 or when they do have them they are inadequate as described by researchers
participating in this study. 105
92
93
Kosovo, Serbia
2nd General Report of CPT [CPT/Inf (1992)3] para 36
94
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Adopted by General
Assembly resolution 43/173 of 9 December 1988, principle 16:1
European Prison Rules [Recommendation Rec(2006)2 of the Committee of Ministers to member states on the
European Prison Rules] Rules 24.1, 24.2; and Standard Minimum Rules for the Treatment of Prisoners [New York
1984], rule 92
96 2nd General Report of CPT [CPT/Inf (92)3], para 51
95
97
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Adopted by General Assembly resolution 43/173 of 9 December 1988, principle 20.
Hungary, Russia
Bulgaria
100 Albania, Turkey
101 Montenegro, Serbia
102 Albania Turkey
103 Albania, Czech Republic, Hungary
104 Bulgaria
105 Albania, Kazakhstan, Montenegro
98
99
27
In some countries visitationrights can only be exercised with a special permit from the court,106 or
the prosecutor in charge,107 or the investigator.108 This permission process is at times used as a
means to put pressure on the detainee.109
The duration of visits allowed vary, raging from half an hour110, to one hour111, to 90 minutes,112
and in Albania visits may be extended for up to five hours in the case of pre-trial detainees who
are married and/or have children. In many countries these visits are carried out under the visual
supervision of prison staff.
4.4. Access to the case-file and evidence to be used against him
International standards
According to well-established ECtHR case law, the proceedings in which a decision on detention
is taken “must be adversarial and must always ensure ‘equality of arms’ between the parties, the
prosecutor and the detained person. [...] Equality of arms is not ensured if counsel is denied
access to those documents in the investigation file which are essential in order effectively to
challenge the lawfulness of his client’s detention”.113
Research results
This right is guaranteed in the legislation of all of the participating countries, except for
Kazakhstan, where suspects and accused have only the right to personally maintain copies of the
documents and records related to their criminal cases
In many countries, this right may be restricted in exceptional cases;114 and in practice access to the
case file during the pre-trial investigation is denied in most cases.115 Additionally, in some
countries the right is limited during the investigation phase; this right is fully recognized after the
investigation is complete.116
4.5. Access to an interpreter
International standards
The right to receive communications in a language the detainee understands is recognized by
both the ECHR in Article 5(2) and the ICCPR in Article 14(3)(a).
The HRC has repeatedly found violations of the ICCPR in cases where this right is not
observed.117 Such a right is of paramount significance for monolingual indigenous people,118
minors,119 and socially vulnerable groups.
Research results
The right to translation and interpretation is provided for in the legislation of all countries
participating in this study, and it is generally respected.
Georgia, Kosovo, Serbia, Ukraine
Lithuania, Georgia,
108 Russia, Georgia, Ukraine
109 Lithuania, Russia
110 Montenegro
111 Serbia, Moldova, Turkey
112 Czech Republic
113 see, among other authorities, ECtHR, Nikolova v. Bulgaria, Application no. 31195/96, para. 58;
114 Bulgaria, Czech Republic, Lithuania, Turkey
115 Lithuania
116 Bulgaria, Russia,
117HRC, Sobhraj v. Nepal, CCPR/C/99/D/1870/2009 (2010),
118 Peru, CERD, A/54/18 (1999) 21 at para. 152; Guatemala, CERD, A/52/18 (1997) 14 at paras. 79 and 89.
119 Guatemala, CRC, CRC/C/108 (2001) 47 at para. 283.
106
107
28
Some of the researchers did point out that some issues remain regarding the implementation this
right. As our Ukrainian researcher explained, one reason this right is not always respected in
practice is due to lack of funding. Additionally, where this right is afforded, there are at times
doubts about the quality of the translation,120 and in some countries translation is not provided
for all documents relevant to the detainee’s case.121
Furthermore it seems that translation is not available for all languages, particularly those which
are not very common in a given country;122 in Serbia it is often difficult to provide translation and
interpretation even for relatively common languages like Farsi and Arabic.
4.6. Right to practice one’s religion
International standards
Freedom of religion is generally recognized as a fundamental human right by both the ECHR (in
Article 9) and the ICCPR (in Article 18).
In the context of detention, this right is also recognized.123 Accordingly, detention facilities
should allow detainees to practice their religion, and when there are sufficient detainees of the
same religion, a qualified representative of that religion shall be appointed or approved and
allowed to hold services and meet with detainees if the detainees so wish.124
Research results
This right is also recognized in the legislation of all of the countries participating in this study,
and many of the researchers identified no particular issues with the realisation of this right in
practice. 125
However, a recurring issue in some countries is the fact that detention facilities do not have
special rooms where detainees can practice their religions126 or only provide these rooms for the
dominant national religion.127
In Turkey, our researcher indicates that only representatives of the religions which are accepted
by the Turkish Government gain access to the right to practice their religion in detention
facilities. As a result of this requirement, the request of Bülent Özdemir, an Alewi citizen who is a
political prisoner in Kandıra F Type Prison, to see an Alewi religious leader was denied.128
Georgia
Georgia, Russia
122 Lithuania, Moldova
123 European Prison Rules [Recommendation Rec(2006)2 of the Committee of Ministers to member states on the
European Prison Rules] Rule 29.1
124 Standard Minimum Rules for the Treatment of Prisoners [New York 1984] Rule 41
125 Czech Republic, Georgia, Poland, Russia
126 Albania, Kosovo, Montenegro, Romania, Serbia, Ukraine
127 Bulgaria, Lithuania, Moldova
128 For the news on this subject see.
http://www.radikal.com.tr/Radikal.aspx?aType=RadikalDetayV3&ArticleID=1074859&CategoryID=77
120
121
29
5. Vulnerable Groups
5.1. LGBTQI129
International standards
Prisoners perceived to be of a minority sexual orientation have been acknowledged by the CPT
as members of a vulnerable group,130 and accordingly, they must be granted special protection.
The ECtHR acknowledges a security issue for this group, as at times prisoners may face
harassment based on sexual orientation; however the ECtHR has found that placing someone in
solitary confinement in order to respond to any security threats they may face is in contradiction
with the ECHR.131
Some of the special needs of homosexuals that should be addressed include: access to adequate
medical care and counselling, including access to hormonal or other therapy, as well as to genderreassignment treatments where desired.132
Research results
None of the countries participating in this study have specific provisions dealing with lesbian,
gay, bisexual, transgender and/or intersex (“LGBTQI”) detainees.
This is the case even though some of these countries have acknowledged that people perceived
to be of a minority sexual orientation are frequently subject to harassment and mistreatment, as
our researchers from Moldova133 and Ukraine have indicated.
Furthermore, the question of detainee access to hormonal treatment seems to have never been
raised in the practice of a number of countries participating in this study.134
However, some countries have developed informal practices; for example in Romania, detainees
of a minority sexual orientation are held in separate cells if it is necessary.
In Turkey civil society has been very active with respect to the rights of LGBTQI detainees. 135
While there is no special legislation in Turkey, there are a number of informal practices.
Detainees perceived as belonging to a sexual minority are kept separately from the general prison
population, at times in solitary confinement. Transwomen, however, are held in special wards;
LGBTQI stands for Lesbian, Gay Bisexual, Transsexual, Queer, Questioning and Intersex
Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 10 to 26 September 2000,
para 65
131 X v Turkey ( Application no 24626/09, Judgement of 9 October 2012) paras 63-65
132 Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation
and Gender Identity, Pinciple 9,
133 IRP, Securitatea personală în mediul penitenciar (2012), available at: http://irp.md/item.php?text_id=1196 (30.07.2012,
Romanian), p. 22.
134 Czech Republic, Lithuania, Serbia
135 A recent study has been completed under the leadership of Civil Society in the Penal System Foundation, Kaos
GL and Pembe Hayat (Pink Life) Association. These three association announced that they would develop a mutual
program in order to strengthen human rights in prisons and to democratize prison management, and that they would
cooperate so as to protect and strengthen the rights of lesbian, gay, bisexual, transgender and intersexual people in
prisons, adding that as a first step they would document current violations, visit prisons together with voluntary
institutions and individuals, determine problematic areas and carry them into the agenda of the Parliament and
judicial bodies, arrange meetings with the local prison management, non-governmental organizations and media
organs and demand that any violation with respect to sexual preference or gender identity be reported to these
associations, either by the victim or their relatives. For calls in relation to this matter see:
http://www.cezaevindestk.org/duyuru-4
ceza_infaz_sisteminde_sivil_toplum_dernegi_(cisst)_ile_kaos_gl_ve_pembe_hayat_dernekleri_tutuklu_hukumlu_hu
kum_ozlu_mahpuslar_ile_yakinlarina_cagri
129
130
30
these wards exist in 3 different prisons in Turkey. They are also at times held in a women’s ward
or in an otherwise empty ward. Transmen are also held in women’s wards. In practice,
transgender people are denied access to hormonal treatment, medical care, exercise, and
vocational training; the situation of other sexual minorities is similar. These deficiencies could be
explained by lack of training among prison officials and staff.
5.2. Juveniles (under 18)
International standards
Given their particular needs and in order to provide for their safety, juveniles should be held
separately from adults.136
Also, it is very important that juveniles “be provided, where possible, with opportunities to
pursue work, with remuneration, and continue education or training, but should not be required
to do so”.137
Research results
In all of the countries participating in this study, juveniles are kept separately from adults.
However, in some countries this is not an absolute rule, and the law allows for adults to be placed
together with juveniles in exceptional cases.138
Additionally, juveniles are provided with access to education in all countries surveyed. 139 In
practice, some obstacles remain, however. For example, in Russia some regions experience
difficulties with the availability of teachers, and in some regions, like Krasnoyarsk Territory, the
educational process is held on an individual basis.
The situation is particularly bad in Serbia, where in almost all detention facilities minors are
accommodated together with adults,140 and educational programmes are not offered 141
5.3. People with disabilities
International standards
The ECtHR has heard a series of cases dealing with the rights of detainees that have a disability.
With respect to detainees with intellectual disabilities, the ECtHR has stressed that national
authorities should “take into consideration their vulnerability and their inability, in some cases, to
complain coherently or at all about how they are being affected by any particular treatment”. 142
Moreover, “prisoners known to be suffering from serious mental disturbance and to pose a
suicide risk require special measures geared to their condition in order to ensure compatibility
with the requirements of humane treatment”.143
Some disciplinary punishments may be incompatible with the ECHR when applied to detainees
with intellectual disabilities; for example, placing someone in a segregation unit for seven days.144
Also such prisoners should be provided with appropriate services; in one case the ECtHR found
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”) (1985),
13.4
137 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), article 18 (b)
138 Czech Republic, Poland, Ukraine
139 Albania, Czech Republic, Lithuania, Moldova, Montenegro, Poland, Romania, Turkey
140 Human Rights Committee Valjevo, Report on Human Rights of Juvenile in the institutions of isolation, available
at: http://www.odbor.rs/images/HROMID%20engl..pdf (20.07.2012, English)
141 Ibid.
142 Renolde v. France, Application no. 5608/05, 16 October 2008, para120
143 Renolde v. France, Application no. 5608/05, 16 October 2008, para128
144 Keenan v. the United Kingdom, Application no. 27229/95, 3 April 2001, para 116
136
31
a violation of Article 3 because the applicant was held in PTD for four days without access to the
psychiatric services he urgently needed.145
Detainees with physical disabilities also have special needs, and it is particularly important that
the detention facilities are adapted to their disability.146 The ECtHR found a violation of Article 3
in a case in which the applicant, who was wheelchair-bound, was detained in a cell where she
could not reach the bed and had to sleep in her wheelchair and where she needed male guards to
help her use the toilet.147
Research results
Detention facilities in the countries surveyed are generally not accessible to people with
disabilities.148 In some countries there are no special legal provisions regulating the detention of
people with disabilities.149 Others have only general provisions relating to antidiscrimination and
reasonable accommodation.150 However, even in countries that do have specific provisions, these
are not followed in practice;151 for example in Montenegro, the investigation prison in Podgorica
has a special room intended for wheelchair users, but the toilets and bathrooms are not
accessible, and the entrance door is not sufficiently wide.152
The practice relating to staff training also varies; some countries do provide for basic training on
interaction with people with intellectual disabilities,153 while others provide no disability
sensitivity training.154
HIV/AIDS
Detainee access to HIV treatment is guaranteed in some of the countries participating in this
study.155 Regarding specific policies towards HIV-infected detainees, some countries have a very
elaborate system which provides for both testing and treatment of HIV, as is the case in Georgia;
while others have no specific legal provisions for HIV-infected detainees/prisoners.156 In
Albania, according to data provided by General Directorate of Prisons in 2011, there are no
detainees infected with HIV/AIDS in the penitentiary system; this seems to also be the situation
in Montenegro.157
In Russia, detainees infected with HIV are generally placed in solitary confinement. This practice
was criticized in an ECtHR judgment in a case in which a detainee spent almost three years in
solitary confinement while in PTD because he had HIV, even though he was only charged with
an economic crime and posed no threat to the security of the detention facility.158
M.S. v. the United Kingdom, Application no. 24527/08, 3 May 2012, paras 44-46
Council of Europe, Committee of Ministers Recommendation No. R (98) 7, Concerning the Ethical and
Organizational Aspects of Health Care in Prisons. C 50
147 Price v. the United Kingdom, Application no. 33394/96), 10 July 2001, para 30
148 Bulgaria, Czech, Georgia, Lithuania, Romania, Russia, Serbia, Turkey, Ukraine
149 Kazakhstan, Moldova, Montenegro
150 Albania
151 Georgia
152Izvještaj o poštovanju ljudskih prava pritvorenih lica i lica na izdržavanju kazne zatvora u Zavodu za izvršenje krivičnih
sankcija,Izvjestaj monitoring tima nevladinih organizacija,Podgorica, 15 jun 2012. godine, strana 53 (The Report on Human
Rights Protection of Deteinees and the Persons Convicted on Imprisonment in IECP, the Report of the Monitoring
Team of NGOs, Podgorica, 15 Jun 2012, p.53, available at:http://www.hraction.org/wpcontent/uploads/Izvjestaj%20FINAL_15062012-1.pdf
153 Lithuania, Romania
154 Czech Republic, Moldova, Russia, Serbia, Turkey, Ukraine
155 Kazakhstan, Lithuania, Moldova, Montenegro, Romania, Russia
156 Albania, Bulgaria, Czech
157 Interview with doctor A. Marjanovic of the Health Institute, 12 July 2012.
158 A.B. v. Russia,(Application no. 1439/06, judgment of 14 October 2010) paras 104- 107
145
146
32
In other countries, even if HIV-infected detainees are not separated or isolated, they are subject
to harassment from other detainees/inmates; this is the case in Serbia.
5.4. People suffering from drug addictions
International standards
In a case where the applicant was experiencing heroin withdrawal while in detention, the ECtHR
found a violation of Article 3, because there were deficiencies in the monitoring and treatment of
the detainee.159
Research results
In some of the countries surveyed, there are a significant number of people with drug
dependencies held in detention, as it seems to be the case in Serbia, according to our Serbian
researchers. In Albania according to the data provided by General Directorate of Prisons in 2011,
12% of detainees with health problems are addicted to drugs.
In general, staff is trained in how to handle people with drug dependencies, either through statefunded training programs,160 or training is provided in an informal manner by outside actors, such
as NGOs;161 some countries do not provide any training, however.162
Also, generally detainees with drug addictions have access to specialised treatment. 163 This is not
the case everywhere; as some countries do not provide such treatment,164 while others provide
such treatment only for convicted prisoners and not for pre-trial detainees.165
This study turned up a number of good practices in dealing with prisoners/detainees addicted to
drugs. In Hungary, in many institutions there are special drug prevention units where detainees
currently or formerly suffering from drug dependencies may participate in group therapies and
are regularly supervised by medical experts. These prevention units operate under milder security
regimes, and those detainees willing to stop taking illegal substances are entitled to special
benefits.
In Georgia, the General Directorate of Prisons has set up special medical care for drug-addicted
persons in some Institutions of Execution of Criminal Decisions. Also, in October 2011 a
Georgian prison received the World Health Organization’s special award for implementing a
methadone detoxification program successfully. According to the report, more than 500
prisoners have undergone the treatment program from the start of the program to present.166
In Montenegro, as of February 2010, the NGO “4Life” has conducted a rehabilitation and resocialization programme for detainees suffering from drug addictions. Group therapies are
conducted twice a week, by former drug addicts, a psychologist and a social worker.
A problem that still persists in some countries is the fact that drug users are more exposed to law
enforcement abuses. A recent report from Russia suggests a high number of incidents of
159
McGlinchey and Others v. the United Kingdom, (Application no. 50390/99, Judgement of 29 April 2003), para
57
Albania, Czech Republic, Lithuania, Moldova, Romania, Russia
Albania, Poland
162 Bulgaria, Hungary, Kazakhstan, Kosovo, Ukraine
163 Czech Republic, Hungary, Lithuania, Moldova, Montenegro, Romania, Russia, Serbia, Turkey
164 Kazakhstan, Kosovo, Poland, Ukraine
165 Poland
166http://www.mcla.gov.ge/cms/site_images/pdf/prezentacia%20medical%20dept%2025%2011%2011%20final%2
0version.pdf (last visited 31.07.2012 English)
160
161
33
“forced confession”, in which drug users are subjected to torture in order to “convince” them to
confess to a given crime or to act as an informant for law enforcement agents.167
5.5. Women
International standards
The CPT has indicated168 that a number of safeguards must be met with respect to female
detainees, for example:



detainees should only be searched by staff of the same gender, and they should not be
asked to undress in front of staff of the opposite gender; 169
women should be placed in separate holding cells from men; mixing may be allowed only
if it is accompanied by necessary safeguards; 170
in the case of pregnant women, their dietary needs must be met, and they must be
allowed to give birth outside of the prison.171
Research results
In the countries surveyed, women are generally kept separately from men.172 Additionally,
detainees may only be subjected to strip searches by staff of the same gender.173
With the exception of Ukraine, all of the countries have special provisions for pregnant detainees.
A number of “privileges” are prescribed for pregnant detainees. These can come in the form of:







better standards of medical care174
improved material living conditions175
more time for outside activities176
privileged visiting rights177
interdiction on placement in solitary confinement178
increased/better food portions179
special working conditions180
In some countries they are allowed to give birth at home,181 and even take care of their infant at
home until it is six months182 or one year old.183
Shadow Report to the UN Committee against Torture in relation to the review of the Fifth Periodic Report of the
Russian Federation, 2011, para 5.3, available at:
http://www2.ohchr.org/english/bodies/cat/docs/ngos/JointPMMDPR_RussianFederation_CAT49.doc
168 10th General Report on the CPT's activities covering the period 1 January to 31 December 1999; Ref.: CPT/Inf
(2000) 13 [EN] - Publication Date: 18 August 2000
169 Ibid, para 23
170 Ibid, para 24
171 Ibid, para 26, 27
172 Albania, Bulgaria, Czech Republic, Hungary, Kazakhstan, Kosovo, Lithuania, Moldova, Montenegro, Poland,
Romania, Russia, Serbia, Turkey, Ukraine
173 Albania, Bulgaria, Czech Republic, Georgia, Hungary, Kazakhstan, Lithuania, Moldova, Montenegro, Romania,
Turkey, Ukraine
174 Bulgaria
175 Bulgaria, Georgia, Lithuania, Moldova, Serbia
176 Czech Republic, Kazakhstan
177 Czech Republic
178 Czech Republic, Hungary
179 Lithuania, Moldova, Serbia, Turkey
180 Moldova
181 Hungary, Turkey
182 Hungary, Turkey
167
34
Also, in some countries pregnant women are held separately from other detainees.184 In Poland
they are moved to a hospital ward two months prior to giving birth.
5.6. Seriously ill detainees
International standards
The ECtHR has held that “the State must ensure that the health and well-being of detainees are
adequately secured by, among other things, providing them with the requisite medical assistance”
and if “authorities decided to place and maintain a [seriously ill] person in detention, they should
demonstrate special care in guaranteeing such conditions of detention that correspond to his
special needs”.185
Research results
The right to health services is unanimously recognised in the countries surveyed. Generally
detainees may be transferred to prison hospital centres for medical treatment,186 or if they cannot
be provided with adequate medical treatment in prison hospitals, they may be transferred to civil
hospitals.187
Serious illness is a factor in the decision of whether or not to place someone in PTD in some
countries,188 while others do not allow for consideration of this factor.189
Also, in practice a number of problems still exist.
In Georgia detainees with an infectious disease must be accommodated according to their disease
type.190 However, frequently this requirement is not observed in practice, and pre-trial detainees
with infectious diseases are placed together with other inmates.
In Russia, even though by law detainees must have access to medical care, in practice, seriously ill
persons continually encounter difficulties in receiving adequate medical assistance. For example,
in one of the cases of the Public Verdict Foundation, Taisia Osipova, who suffers from diabetes
and a number of other diseases, was held in a pre-trial detention facility for a long time without
receiving adequate medical care. The Russian Government maintains a list of illnesses which can
serve as grounds for preventing a person frombeing placed into custody.191 The examination of
Ms. Osipova, intended to determine her state of health and identify the extent to which her
illnesses might qualify her for release, was carried out with a number of violations. Attempts to
appeal those actions and to achieve an objective medical examination have yet to have any
effect.192 In May 2012, the European Court communicated Taisia Osipova’s complaints. Another
case of the Public Verdict Foundation is that of Mikhail Kosenko, who falls within the second
disability group as a result of his mental health condition (received as a result of a contusion
during his army service). Mikhail needs permanent medication and medical supervision once a
fortnight. He has been detained since the beginning of June 2012. However, he neither received
any medication, nor had any medical checkups until he and his defender filed complaints. Mikhail
was finally examined by a doctor and prescribed medication two months after the filing of these
Romania, Montenegro
Georgia, Kosovo, Lithuania, Montenegro
185 Khudobin v. Russia, Application no. 59696/00, 26 October 2006, para 93
186 Albania. Czech Republic, Hungary, Kosovo, Lithuania, Moldova, Montenegro, Romania, Serbia
187 Albania, Bulgaria, Czech Republic, Georgia, Hungary, Moldova, Montenegro, Poland, Romania
188 Georgia (it practice it is not) Hungary, Kazakhstan, Kosovo, Lithuania, Moldova, Romania
189 Czech Republic, Montenegro, Turkey
190 Para.15, Article 19 of the Order N97, Regulations of Detention establishment
191 Decree of the Government of the Russian Federation d/d January 14, 2011 No. 3 Moscow “On Medical
Examination of Persons Suspected or Accused of Committing Crimes”. http://www.rg.ru/2011/01/21/sizodok.html
192 http://publicverdict.ru/topics/news/10037.html
183
184
35
complaints. Furthermore, the pre-trial detention center administration justified their failure to
render medical assistance by stating that they did not have a relevant specialist working in the
facility, although the hiring of a psychiatrist is anticipated.193
5.7. Foreigners
International standards
According to the Vienna Convention on Consular Relations of 1963, consular officials have the
right to speak to their nationals detained abroad; they must be informed when any of their
nationals is detained abroad and have the right to visit their nationals held in places of detention,
to talk and correspond with them, and to arrange for their legal representation.194
Research results
All of the countries surveyed provide for the right to access one’s consular representative.195
While in PTD, foreigners who do not understand the local language are generally provided with
assistance from an interpreter196 and with translations of their rights.197 However, some countries
have reported that issues remain in practice.198
In Montenegro, NGO monitoring determined that prisons’ House Rules have not been
translated into any foreign language and that foreign prisoners and detainees are not adequately
informed of their rights.199
In Russia there is a problem with availability of translators. As a result, all proceedings are held in
the Russian language, which often poses a problem for detainees. For example, visitors are
required to speak Russian during their visits to detainees. Another problem is the requirement
that detainees conduct written correspondence with relatives only in Russian, since all
correspondence passes through censorship, which can only be effectively organized in Russian.
5.7. Ethnic minorities
International standards
The UN Committee on the Elimination of Racial Discrimination (CERD) has stressed the fact
that ethnic minorities and foreigners are overrepresented in pre-trial detention, and it urges states
to ensure “that the mere fact of belonging to a racial or ethnic group [...] is not a sufficient
reason, de jure or de facto, to place a person in pre-trial detention”.200 It also encourages states to
fight discrimination, to promote greater understanding among prison staff and detainees through
specialized training, to promote proper representation of ethnic minorities in the police and
http://publicverdict.ru/topics/news/10401.html (19/07/2012, Russian)
Vienna Convention on Consular Relations, Done at Vienna on 24 April 1963, art. 36 (1)
195 Albania, Bulgaria, Czech Republic, Georgia, Hungary, Kazakhstan, Kosovo, Lithuania, Moldova, Montenegro,
Poland, Romania, Serbia, Turkey, Ukraine
196 Albania, Bulgaria, Czech Republic, Georgia, Hungary, Kazakhstan, Kosovo, Lithuania, Moldova, Montenegro,
Romania, Turkey, Ukraine
197 Bulgaria, Czech Republic, Georgia, Kazakhstan, Kosovo, Lithuania, Moldova, Montenegro, Romania
198 Georgia, Kazakhstan, Montenegro, Russia, Ukraine
199 Izvještaj o poštovanju ljudskih prava pritvorenih lica i lica na izdržavanju kazne zatvora u Zavodu za izvršenje krivičnih sankcija,
Izvjestaj monitoring tima nevladinih organizacija, Podgorica, 15 jun 2012.godine, str. 41, (The Report on Human Rights
Protection of Deteinees and the Persons Convicted on Imprisonment in IECP, the Report of the Monitoring Team
of NGOs, Podgorica, 15 Jun 2012, p.41, available at http://www.hraction.org/wpcontent/uploads/Izvjestaj%20FINAL_15062012-1.pdf
200 UN Committee on the Elimination of Racial Discrimination (CERD), CERD General Recommendation XXXI on the
Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System, 2005, art. 26 (a)
193
194
36
justice system, and to provide accommodation for the various cultural and religious practices of
detainees of minority ethnical background.201
Research results
Many of the survey respondents claimed that racial minorities are not at any particular risk while
detained in their countries,202 or that they have no information that would lead them to believe
that such a risk exists.203
Some do however indicate that particular minorities are overrepresented in detention centres.
Such is the case with Roma in Bulgaria (where they account for 80% of the prison population
according to our researcher) and in the Czech Republic.
Also, some researchers did indicate that in their countries some ethnic minorities are at higher
risk in detention facilities. This is the case with Roma in Hungary and Lithuania, where they are
exposed to inhumane and degrading treatment by penitentiary officers and other prisoners as
well. The Kurds in Turkey also face a number of issues, primarily with regards to their right to
communicate in their mother tongue, both during court proceedings and during visits/calls with
friends and relatives.
6. Ordering pre-trial detention
Any deprivation of liberty must be lawful. According to the ECtHR : 204
This requirement refers essentially to national law but also, where appropriate, to other
applicable legal standards, including those which have their source in international law. In
all cases, it establishes the obligation to conform to the substantive and procedural rules of
the laws concerned, but it also requires that any deprivation of liberty be compatible with
the purpose of Article 5, namely, to protect the individual from arbitrariness.
The ECtHR will also consider whether the law itself is in conformity with the ECHR, and in
particular, whether the principle of legal certainty is respected, which requires that “the
conditions for deprivation of liberty under domestic law be clearly defined and that the law itself
be foreseeable in its application”.205
6.1. Grounds for ordering pre-trial detention
International standards
According to the ECHR, a person can be detained in order to be brought before a competent
legal authority upon reasonable suspicion of having committed an offence.206 Once a person is
brought before a competent legal authority, it is for this authority to decide whether to order
release or to prolong detention.207
When deciding to prolong the detention, a reasonable suspicion of having committed an offence
is a sine qua non condition for the lawfulness of such continued detention.208 Whether this
condition is met depends on the circumstances of the case, but the general rule is that there must
UN Committee on the Elimination of Racial Discrimination (CERD), CERD General Recommendation XXXI on the
Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System, 2005, art. 5
202Kosovo, Moldova, Ukraine
203 Albania, Montenegro, Poland, Romania, Serbia
204 Medvedyev and Others v. France [GC], (Application no. 3394/03, Judgement of 29 March 2010), para. 79
205 Chumakov v. Russia, (, Application no. 41794/04, Judgement of 24 April 2012) para. 128
206 European Covention on Human Rights, as amended by Protocols Nos. 11 and 14, article 5.1 (c)
207 See section 6.2. of this study (Authority competent to order pre-trial detention) at page 41
208 Punzelt v. the Czech Republic (Application no. 31315/96, Judgement of 25 April 2000), para. 73
201
37
be “facts or information which would satisfy an objective observer that the person concerned
may have committed the offence”.209
Also, after a certain lapse of time, in order to prolong the detention, the national legal authority
must adduce new grounds to justify such detention.210
Other such grounds include:

risk of absconding/fleeing—The ECtHR has indicated that the fear that someone will
flee cannot be based solely on the severity of the possible sentence; the national court
should consider other criteria as well, such as: “the character of the person involved, his
morals, his assets, his links with the State in which he is being prosecuted and his
international contacts”.211

risk of interfering with the course of justice—This could be based on the risk of
putting pressure on the witnesses212 or tampering with evidence.213 (However, once the
evidence has been collected these grounds become irrelevant.214)

risk of reoffending—A decision based on this ground may not be based solely on a
person’s antecedents.215

risk to public order—This ground can be used for offences which may give rise to social
disturbances given their particular gravity of the offence and the public reaction to
offences of this type.216 The use of this ground need to be based on “facts capable of
showing that the accused’s release would actually disturb public order”
The HRC in its jurisprudence217 has suggested that PTD should be ordered only when there is a
probability that the accused is likely to:

abscond or tamper with evidence

influence witnesses or other parties of the proceedings

flee from the jurisdiction of the State party.
Another ground considered by the HRC is the mere fact of being a foreigner, which is
considered to indicate a higher risk of fleeing the country. However, ordering PTD solely on this
ground has been found to be in contradiction with Article 9(3) of the ICCPR.218
The HRC also, emphasize that no one ca be detained on grounds which are not clearly
established in domestic legislation.219
Fox, Campbell and Hartley v. The United Kingdom (Application no. 12244/86; 12245/86; 12383/86, Judgement
of 30 August 1990), para. 32
210 Punzelt v. the Czech Republic (Application no. 31315/96, Judgement of 25 April 2000), para. 73
211 W. v. Switzerland, (Application no, 14379/88, Judgement of 26 January 1993) para 33
212 Letellier v. France, (Application no.12369/86,Judgement of 26 June 1991) para 39
213 W. v. Switzerland, (Application no.14379/88,Judgement of 26 January 1993) para 36
214 Mamedova v. Russia, (Application no. 7064/05, Judgement of 1 June 2006) para 79
215 Muller v. France, (Application no 21802/93, Judgement of17 March 1997) para 44
216 I.A. v. France, (Application no 28213/95, Judgement of 23 September 1998) para 104
217 HRC, Communication No. 526/1993, Hill v. Spain, Views adopted on 2 April 1997, paragraph 12.3.
218 Communication No. 526/1993, Hill v. Spain, Views adopted on 2 April 1997, paragraph 12.3
219
HRC, Communication No. 702/1996, McLawrence v. Jamaica, Views adopted on 18 July 1997, paragraph 5.5
209
38
Research results
Table 7: Grounds for ordering pre-trial detention
Al Bg Cz Ge Hu Kz Ko Lt Md Mn Pl Ro Rs Sr Tk UKR
Reasonable
suspicion
X
X
X
X
X
X
X
X
X
X
X
X
Non-appearance
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Reoffending
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Interfere with the
course of justcie
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Public order
X
X
Obstructing
Evidence
X
X
X
X
X
X
X
X
No residence
X
No ID
X
Violation of
alternative
measure
X
Crime committed
by a group of
criminals
X
Criminal record
X
X
X
X
Severity of the
offence
X
X
X
X
X
A reasonable suspicion of having committed an offence is not always grounds for ordering PTD.
It is sometimes just a necessary condition that must be met; PTD cannot be ordered solely on
this ground. This is the case in Lithuania.
Good practice
In response to a number of ECtHR and constitutional court decisions, in 2011 the Czech
Republic introduced a number of amendments to existing legislation with the aim of reducing the
relatively large number of people in custody and the average length of detention.220
Under Article 67 of the Code of Criminal Procedure (“CCP”), the accused person may be taken
into custody only if specific facts of the case give rise to justified concerns that: a) he or she will
escape or go into hiding to avoid prosecution or punishment, particularly if his or her identity
cannot be immediately determined, if he or she has no permanent residence or if he or she is
liable to receive a severe sentence; b) he or she will bring pressure to bear on unquestioned
witnesses or co-defendants or otherwise obstruct the clarification of facts important for
Z. Karabec, J. Vlach (ed): Criminal Justice System in the Czech Republic, Prague: IKSP, 2011, p. 39, available at:
http://www.ok.cz/iksp/docs/386.pdf
220
39
prosecution; or c) he or she will commit again the offence for which he or she is prosecuted, or
complete the attempted offence, or commit an offence which he or she has planned or
threatened to commit.
The procedure is initiated by the state prosecutor, who brings the request to detain the accused
person before the judge. The only authorities authorized to order detention are the judge in the
pre-trial phase of the criminal proceeding or the court in the trial phase of the proceeding. The
2011 amendment introduced obligatory custodial hearings in order to comply with the criticism
of the Constitutional Court of the Czech Republic (see above). These hearings are mandatory,
but not public. The detained person must be afforded legal represented and translation must be
available.
Also in Montenegro, in the past PTD was often ordered for young and unemployed persons, on
the belief that they posed a greater risk of escape (absconding). This justification for PTD has
been recently successfully challenged in appellate court, which ultimately modified the general
practice. The court held that PTD should be justified with more reasons, such as evidence of a
concrete threat of escape (frequent visits and contact abroad, previous escape attempts during the
course of the criminal proceedings, etc.).221
Bad practice
A particularly interesting situation can be found in Kazakhstan, where grounds for detention
include:


not being a permanent resident
having a criminal record
Article 150 of the Code of Criminal Procedure of the Republic of Kazakhstan:
Arrest as a preventive measure applies only with court approval and only with respect to
the accused suspected of committing a crime for which the law prescribes a penalty of
imprisonment for a term of not less than five years. In exceptional cases, this preventive
measure may be applied to the accused suspected of committing a crime for which the law
prescribes a penalty of imprisonment for a term of less than five years, if:
1) he does not have permanent residence in the territory of the Republic of
Kazakhstan;
2) his identity is not established;
3) he violated a previously ordered preventive measure;
4) he attempted escape or has escaped from the prosecuting authorities or the court;
5) he is accused or suspected of committing a crime in an organized group or criminal
community (criminal organization);
6) he has a previous conviction for a serious or particularly serious crime.
Ordering PTD on the grounds of non-permanent residence goes against the above-mentioned
HRC jurisprudence, which states that being a foreigner (arguably comparable to not having
permanent residence) cannot be the sole ground on which PTD is ordered. 222
Also, ordering PTD simply because a person has a criminal record does not take into account the
fact that the person may have been rehabilitated, and is a means by which people can be sucked
into a criminal cycle; it also contravenes ECtHR jurisprudence223
221
222
Interview with the High Court in Podgorica judge Ana Vukovic, 30 July 2012.
Communication No. 526/1993, Hill v. Spain, Views adopted on 2 April 1997, paragraph 12.3
40
6.2. Authority competent to order pre-trial detention
International standards
Both the ECHR (Article 5 (3)) and the ICCPR (Article 9(3)) require that once someone is
detained he/she must be brought promptly before a judge or other officer authorised by law to
exercise judicial power.
As for what an “officer authorized by law to exercise judicial power” means, the ECtHR has
repeatedly explained that such an officer cannot be a prosecutor, because it fails to meet the
impartiality and independence requirement.224
This is also the position adopted by the HRC. In the case of Sultanova v. Uzbekistan,225 the HRC
explains that the decision to place someone in PTD should be brought under judicial control; the
court further notes that “it is inherent to the proper exercise of judicial power, that it be exercised
by an authority which is independent, objective and impartial in relation to the issues dealt with”;
in that case, the court found that the prosecutor did not satisfy that criteria and consequently
could not be considered to be an “officer authorized to exercise judicial power”.
Research results
In all of the countries participating in this study, it is the judge who orders PTD.
Practice varies with regards to which authority may order alternatives to PTD, as per the table
below:
Table 8: Authority ordering alternatives to pre-trial detention
Judge
Al
Bg
Cz
Ge
Hu Kz
Ko
Lt
Md
M
n
P
l
Ro
Rs
Sr
Tk
UKR
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Prosecutor
X
X
Police
X
X
X
Investigator
X
226
Appeal to
judge
X
X
X
X
X
X
In each of the countries where alternatives to PTD may also be ordered by authorities other than
the judge, such as a prosecutor or police officer, this order may be challenged before a court.
Muller v. France, (Application no 21802/93, Judgement of17 March 1997) para 44
Directorate General of Human Rights, Council of Europe, The right to liberty and security of the person A guide
to the implementation of Article 5 of the European Convention on Human Rights, Monica Macovei, Human rights handbooks,
No. 5, 2002, available at: http://echr.coe.int/NR/rdonlyres/D7297F8F-88DB-42B0-A831FB4D1223164A/0/DG2ENHRHAND052004.pdf , page 50-52
225 Mrs. Darmon Sultanova v Uzbekistan, Communication No. 915/2000, 30 March 2006, para. 7.7
226 The investigator is a different authority than the police and prosecutor. There are two categories of investigators investigative committee within Ministry of interior (which is not police but one of the body within the Ministry as
well as police is one of the body within Ministry) and investigative committee of Russia (which used to be a part of
prosecutor office but became independent institution since 2011). Both investigative committees investigate criminal
cases, work with suspected. The difference is the categories of crimes: investigative committee within ministry of
interior works on "usual" crimes, investigative committee of Russia works on most grave crimes like killing, rape,
abuse of power, extremism, crimes against minors.
223
224
41
X
6.3. Reasoned and individualised decision
International standards
In the context of PTD, the ECtHR has repeatedly stated that when courts are deciding whether
to order or prolong pre-trial detention they “must examine all the facts arguing for or against the
existence of a genuine requirement of public interest justifying, with due regard to the principle
of the presumption of innocence, the deprivation of liberty”, and they must “set them out in
their decisions”.227
Consequently, there must be a reasoned decision behind any deprivation of liberty. Justifications
must be provided irrespective of the length of detention.228 Such justification cannot be abstract
and general.229 Moreover, according to ECtHR jurisprudence, the “legal and factual grounds” for
the arrest must be given.230 In the case of several concurrent investigations, the ECtHR has held
that the authorities must provide the suspect with at least minimal facts regarding each of the
investigations, if the materials from those investigations may serve as a basis for his detention.231
Research results
In all of the countries participating in this study, the laws on the books require a reasoned
decision in order to place someone in PTD. However, this obligation is often not observed in
practice. This is the case in Poland, where according to our researchers, decisions to place
someone in PTD are often inadequately substantiated; there have also been instances where the
decision to order PTD is taken with respect to more than one person at the same time (a “block
decision”), resulting in a failure to properly individualize the grounds for ordering this preventive
measure.
Good practice
Despite some problems in practice, Polish law on PTD can be seen as a positive example. In
Poland, in a decision to order PTD the following should be specified: identification of the
person, identification of the act of which he/she is accused, its legal qualification as well as the
legal basis for ordering a preventive measure and the duration of such measure. A statement of
the reasons for ordering a preventive measure should include a presentation of the evidence
tending to prove that the accused committed the crime and should provide the circumstances
indicating the basis and necessity for ordering the preventive measure. Moreover it should
explain why alternative preventive measures were deemed insufficient (Criminal Procedure
Code of the Republic of Poland, Article 251).
This final provision is an essential safeguard which should encourage courts to carefully consider
why an alternative to PTD would not serve the same function. A similar provision also exists in
other countries, such as the Czech Republic (Criminal Procedure Code of the Republic of
Poland, Article 73(c))
ECtHR, Labita v. Italy [GC], 6 April 2000, Application no. 26772/95, para 152 (emphasis added)
Belchev v. Bulgaria, 8 April 2004, Application no. 39270/98, para 82
229 ECtHR, Clooth v. Belgium, 12 December 1991, Series A no 225, para 44
230 Fox, Campbell and Hartley v the UK, ECtHR, Judgment of 30 August 1990, para. 40.
231 Leva v. Moldova, ECtHR, Judgment of 15 December 2009, para. 61.
227
228ECtHR,
42
7. Duration of pre-trial detention
7.1. Maximum time limit for which pre-trial detention can be ordered
International standards
There is a clear obligation under Article 5(3) of the ECHR that anyone held in PTD must be
provided with a trial within a reasonable time period. This provision is also present in Article 9(3)
of the ICCPR. PTD should be “as short as possible”,232 and should last “no longer than
necessary”. 233
However, international law provides for no maximum time limits for PTD; the reasonableness of
the duration is assessed on a case-by-case basis in order to evaluate if detention has been
excessive. In assessing the reasonableness of the duration of PTD, the HRC may take into
account “special circumstances justifying delay, such as [the fact] that there were, or had been,
impediments to the investigations attributable to the accused or to his representative”.234 In the
past the HRC has found a violation of Article 9(3) of the ICCPR in cases where the applicant was
held in pre-trial detention for seven years and eighth months,235 nine years236 or for four years and
four months.237
The ECtHR jurisprudence on the matter is more developed;238 despite not having established
clear time limitations on PTD, the Court has indicated a number of factors that it will take into
consideration when determining the length of PTD, such as:

the complexity of the investigation;

the number of co-defendants;

whether there are international elements;

the nature and complexity of the legal issues; and

the conduct of the accused
In assessing the length of PTD, the ECtHR will also look at whether authorities have shown
“special diligence” in dealing with cases in which someone is held in PTD.239
In applying this test, in some instances the ECtHR found periods of one year to be excessive,
while in others, periods of three years were considered to be acceptable; a period of over five
years, however, was generally considered unacceptable.240
HRC Gen Comment No.8 : right to liberty and security of person (art.9) 06/301982 para.3 available:
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f4253f9572cd4700c12563ed00483bec?Opendocument
233 United Nations Standards Minimum Rules for Non-Custodial Measures General Assembly resolution 45/110 of
14 December 1990, principle 6.2
234 HRC, Famara Koné v. Senegal, Communication No. 386/1989, 21 October 1994, para 8.6, 8.7
235 HRC, Elahie v. Trinidad and Tobago , Communication No 533/1993, 28 July 1997, para 8.2
232
HRC, Geniuval Cagas, Wilson Butin and Julio Astillero v. Phillipines, Communication No. 788/1997, 23 October 2004,
para 7.4
237HRC, Famara Konév. Senegal, Communication No. 386/1989, 21 October 1994, para 8.7
238 INTERIGHTS Manual for Lawyers – Right to Liberty and Security under the ECHR (Article 5), September 2007,
page 39,40 available at: http://www.interights.org/document/105/index.html
239 Assenov and others v. Bulgaria, (Application no. 90/1997/874/1086, Judgement of 28 October 1998 ) para. 154;
; Labita v. Italy (Application no. 26772/95, Judgement of 6 April 2000) para 153; Scott v. Spain, (Applicatio no.
21335/93, Judgement of 18 December 1996), para.74
240 Council of Europe, Human Rights Handbook no. 5:The right to liberty and security of the person, A guide to the
implementation of Article 5 of the European Convention on Human Rights, Monica Macovei, 2002, page 35, available at:
236
43
Research results
A number of countries participating in this study have specific provisions requiring that
investigations of people held in PTD be conducted in an expeditious manner.241 For example, in
Hungary a fast track system is in place for people held in PTD.242
Also, our study found that many countries do place limits on the maximum time a person may be
placed in PTD, but this practice varies widely.
Some countries set a time limit for PTD during a criminal investigation. Examples of these time
limits are as follows: 180 days (Romania), six months (Serbia), 12 months (Kosovo—this limit
applies only in exceptional situations243), 18 months (Lithuania—although for minors the limit is
12 months), four years (Hungary). However, some countries place no time limit on the duration
of PTD during the trial phase, instead requiring only that the judge must review the continued
necessity of PTD every 30 days.244
Others, however, do set a time limit on the entire duration of PTD; examples of these time limits
are as follows: nine months (Georgia), 18 months (Ukraine, Russia), two years (Bulgaria,
Moldova, Poland245), three years (Kazakhstan, Albania246), four years (the Czech Republic).
Montenegro places a fixed limit of three years on PTD, calculated from the moment charges are
pressed to the moment a decision is reached by the first instance court; however, if the firstinstance decision is reached within three years, a person may still be held indefinitely during
appeal proceedings, a situation which has been criticised by civil society representatives.247
Many countries in the region impose different limits depending on the severity of the crime248
and whether or not the defendant is a juvenile249; some also take into account both the procedural
stage and the severity of the offence.250
http://echr.coe.int/NR/rdonlyres/D7297F8F-88DB-42B0-A831FB4D1223164A/0/DG2ENHRHAND052004.pdf
241 Czech Republic, Georgia, Hungary, Kazakhstan, Moldova, Montenegro
242 Act XIX. of 1998 on Criminal Proceedings, Sec 136(1)
243 The general rule is that prior to the filing of an indictment, detention on remand shall not exceed:
- Three months, if proceedings are conducted for a criminal offence punishable by
imprisonment of less than five
years;
- Six months, if proceedings are conducted for a criminal offence punishable by
imprisonment of at least five
years.
However, in exceptional cases, where the failure to file an indictment within the above mentioned periods is due
to the complexity of the case or to other factors not attributable to the public prosecutor the time limits are:
- Nine months, if proceedings are being conducted for a criminal offence punishable by imprisonment of less than
five years; or
- Twelve months, if proceedings are being conducted for a criminal offence punishable by imprisonment of at least
five years
244 Serbia, Romania
245. The time limit of two years applies only until a decisison is reached by the first instance court. The court of
appeals may extend this period – if such need arises in connection with the suspension of criminal proceedings,
actions aimed at establishment or confirmation of the identity of the accused, performance of evidence-related
actions in the case of high complexity or crossborder dealings or if there is a risk of lengthening of the proceedings
as a result of interventions by the accused. If there is a need to apply PTD after the decision in the first instance has
been issued, each extension may not exceed a period of 6 months.
246 The 3 years time limit applies to cases when the accusations are for crimes that carry a sentence of 10 years to life,
otherwise there is a 2 years time limit (crimes with a maximum of 10 years) or ten months (for criminal
contraventions)
247 Human Rights Action, Human Rights in Montenegro 2010–2011, edited by Tea Gorjanc Prelević, Podgorica, 2011,
available at: http://www.hraction.org/wp-content/uploads/Human_Rights_in_Montenegro_2010-2011.pdf
248 Bulgaria, Czech Republic, Moldova, Kazakhstan, Turkey
249 Moldova, Montenegro, Lithuania
250 Hungary, Kosovo, Moldova, Montenegro, Russia
44
Good practice
The Czech example is a particularly interesting one. Czech law sets different time limits
depending on the severity of the offence, but then specifies that just one third of any given time
limit should be applied to the pre-trial phase and two thirds to the trial phase. The Czech law also
clearly indicates that when PTD has exceeded the time limit, the accused must be released
Bad practice
Turkey establishes different time limits in relation to different crimes and in exceptional cases the
time limit can extend up to 10 years.
Not as extreme, but still troubling, is the Hungarian example. In Hungary pre-trial detention,
which may begin even before charges are pressed, may last as long as four years when a person is
suspected of having committed a crime that carries a prison sentence of 15 years or more.
7.2. Time limit to bring someone before a competent legal authority
International standards
The HRC has stipulated that any delay in bringing a pre-trial detainee before a judicial authority
cannot last more than a few days;251 in the same case it found a violation of Article 9(3) because
there was a 33 days delay before the detainee was brought before a judicial authority.252 The HRC
has reached the same conclusion for a delay of 23 days.253 In a case against Hungary, the HRC
found a violation of Article 9(3) in a case where the suspect “was detained for three days before
being brought before a judicial officer”.254
The ECtHR has also declined to set a clear time limit, but in Brogdan and Others v. United Kingdom it
explained that the “scope for flexibility in interpreting and applying the notion of promptness is
very limited”, and in that case it found that a delay of four days and six hours from the moment a
person is detained to the moment when he/she was brought before a judge did not comply with
the “promptness” requirement.255
Research results
Most of the countries surveyed had maximum time limits for when a person taken into custody
must be brought before a judge; however these time limits ranged from 24 hours256 to 48 hours257
to 72 hours,258 while others just required that a person be brought before a judge “as soon as
possible”.259
Good practice
In the Czech Republic, under Article 69(4) of the Code of Criminal Procedure (“CCP”), the
police authority which apprehends the accused person must bring this person before the court
within 24 hours. Under Article 69(5) of the CCP, the judge must hold a hearing, reach a decision
on pre-trial detention and inform the accused person of this decision within 24 hours from the
moment the person was brought before a judge. If the police authority fails to bring the accused
HRC, Louisa Bousroual v. Algeria, Communication No. 992/2001, 30 March 2006, para 9.6
Ibid.
253 HRC, Yuri Bandajevsky v. Belarus, Communication No. 1100/2002, 28 March 2006, para 10.3
254 HRC, Mr. Rostislav Borisenko v. Hungary, Communication No. 852/1999, 14 October 2002, para 7.4 (emphasis
added)
255 ECtHR, Brogan and others v. The United Kingdom, Application no. 11209/84; 11234/84; 11266/84; 11386/85, 29
November 1988, para. 62
256 Bulgaria, Czech Republic, Romania
257 Albania, Georgia, Lithuania, Russia, Serbia
258 Hungary, Kazakhstan, Kosovo, Poland, Ukraine
259 Moldova, Kosovo, Turkey, Ukraine
251
252
45
person before the court within 24 hours or if the court fails to inform the accused person of its
decision within 24 hours, the person concerned must be released.260 This final provision is not
unique to the Czech Republic, in many ountries there are special provisions which specify that if
the defendant is not brought before a judicial authority within the set time limit he/she should be
released.261
7.3. Independence and impartiality of the judicial authority
International standards
The ECtHR explained in Schiesser v. Switzerland262 that both a court and an officer authorised to
exercise judicial power must uphold certain common criteria, one of which is the requirement to
remain independent from the executive and the parties; this does not include situations in which
judges are subordinated to their superiors, so long as they retain a right to independent judgment.
Applying the above-mentioned test, the ECtHR found that a body lacks independence for the
purposes of Article 5(3) when the officer deciding on an order of PTD could have been replaced
at any point by the executive with no guarantees against the abusive exercise of this power.263
Similarly, the HRC specifies that the authority which orders and reviews PTD must be
“independent, objective and impartial in relation to the issues dealt with”.264
A prosecutor would normally fail the independence and impartiality test.265 Also, if the judicial
officer who decides the question of placement in PTD has the possibility to later intervene in the
proceedings “as a representative of the prosecuting authority, there is a risk that his impartiality
may arouse doubts which are to be held objectively justified”.266
Research results
All of the countries surveyed have provisions declaring the independence and impartiality of the
judiciary; however, in practice a number of issues arise which can cast doubt on judicial
independence. These issues, as reported, related either to the lack of sufficient guarantees of
independence in law267 or serious doubts as to how they are carried out in practice.268
Some of the issues relating to the independence of the judiciary arise from the judicial
nomination process. In many countries, judges sitting on the Supreme Court and the
constitutional court are chosen by the parliament.269
Furthermore, there are a number of issues relating to the balance of power between the
prosecution and judiciary. In many countries, the researchers indicated that judges are pressured
into accepting the prosecutor’s petition to place the accused in PTD. The researchers pointed to
the high rate of requests for placement in PTD made by the prosecutors and accepted by judges
as an indicator of the prosecutors’ influence. In Hungary, 91,5 % of motions by the prosecution
resulted in an order of PTD by the courts in 2011; in Bulgaria the acceptance rate of prosecutor’s
See in more detail, P. Šámal: Trestní řád, Commentary, 6th edition. Prague: CH: Beck, 2008, p. 506.
Kosovo, Hungary, Kazakhstan
262 Schiesser v. Switzerland, Application no. 7710/76, 4 December 1979, para 31
263 Mirosław Garlicki v. Poland, Application no. 36921/07, 14 June 2011, para 113
264 Communication No. 521/1992, Vladimir Kulomin v. Hungary, 22 March 1996, para 11.3
265
See section 6.2. of this study (Authority competent to order pre-trial detention) at page 41
266 Brincat v. Italy,(Application no. 13867/88, Judgement of 26 November 1992), para 21
267 Kazakhstan
268 Moldova – See - Soros Foundation-Moldova, Criminal Justice Performance from a Human Rights Perspective.
Assessing the transformation of the Criminal Justice System in Moldova (2009), available at:
http://soros.md/files/publications/documents/CRIMINAL%20JUSTICE%20PERFORMANCE%20FROM%20
A%20HUMAN%20RIGHTS%20PERSPECTIVE.pdf (30.07.2012, Romanian), p. 68
269 In Albania an Montenegro. In Montenegro there are a number of suggested amendments currently being
discussed that may contribute to the independence of the judiciary.
260
261
46
PTD motions in 2000 was about 18%; then in 2009-2011 it jumped to more than 82%. In
Ukraine, if a judge releases a detainee and orders an alternative preventive measure in spite of a
prosecutor’s petition to prolong the detention, he risks dismissal due to the prosecutor’s
complaint to the judicial disciplinary board.
Another sign of the strong influence of the prosecution could be seen in the very high conviction
rates in some countries. In Georgia the conviction rates is at 98%, though the number of
acquittals did increase slightly compared to 2010. The high conviction rates, coupled with severe
punishments, results in the frequent use of plea bargaining: in 87.5% of cases.270
Problems seem to exist even with the hierarchical structures of the judiciary. In Montenegro the
president of the Supreme Court and of the Judicial Council (the body which appoints judges) has
great power in the process of judicial appointments, and this raises suspicions of “autocratic”
management of the judiciary.271
There are a number of factors that do contribute to the independence of the judiciary. This can
be seen in Poland, which maintains a number of safeguards to this end, such as provisions on
incompatibility, conflict of interest, remuneration of judges, judicial immunity, and limits on
removal from office. Also, in Lithuania, the judge that issues a decision on a PTD order cannot
participate in the proceedings once the case is brought to court, this being an important safeguard
of the judge’s impartiality.
Bad practice
In Turkey there are a number of concerns over the independence of the judiciary. First of all,
serious issues exist with relation to the appointment of court members. According to the
Turkish constitution, the President appoints the members of the Constitutional Court (Article
146), the members of the Military High Court of Appeals (Article 156/2), the members of the
Military High Administrative Court (Article 157/2), and the members of the Supreme Council of
Judges and Public Prosecutors (Article 159/2).272
Moreover, the head of the Supreme Council of Judges and Public Prosecutors is the Minister of
Justice, the Undersecretary to the Minister of Justice is an ex-officio member of the Council and
four regular members of the Council are appointed by the President of the Republic. The head
of the Supreme Court is the one who nominates General Secretary of the said court, which raises
further concerns.273
The executive is also involved in the written and oral examinations for selecting candidate judges
and prosecutors, a practice which has been criticized by the EU.274
The influence of the executive in nominating members of said bodies is highly problematic
because of the powers these bodies hold. The Supreme Council of Judges and Public Prosecutors
European Commission, Implementation of the European Neighborhood Policy in Georgia Progress in 2011 and
recommendations for action, Brussels, (15.05.2012) p. 5
271 For more details ”Assessment of the reform of appointment of judges in Montenegro 2007-2008”, HRA,
Podgorica, 2009, p. 75 and 81 (available at: http://89.188.32.41/download/analiza_ref_izb_sudija_07-08en.pdf).
272 According to Article 159/3 of the Constitution, the Supreme Council of Judges and Public Prosecutors shall deal
with the admission of judges and public prosecutors of courts of justice and of administrative courts into the
profession, appointments, transfers to other posts, the delegation of temporary powers, promotion, promotion to
the first category and the allocation of posts.
273 Gönenç Levent, “Dünyada ve Türkiye’de Yüksek Yargı Kurulları”, Anayasa Çalışma Metinleri, Tepav, Ankara2011, p.18, Özbek Kadir/ Ertosun Ali Suat, Hâkimler ve Savcılar Yüksek Kuruluna İlişkin Anayasa Değişikliği
Konusunda Analitik Bir İnceleme, Yetkin Basımevi, Ankara-2010, p.24, İnceoğlu, Sibel, “Bağımsız ve Tarafsız Bir
Yargı İçin Öneriler”, Çatışmacı Bir Toplumdan Uzlaşmaya: Özgürlükçü ve Eşitlikçi Anayasa Sempozyumu, p.2011,
http://www.anayasa2011.com/?p=1869
274 Report of the European Union (EU) Commission, dated 11-19 July 2004, titled "Functioning of Judicial System
in Republic of Turkey", Review of the European Union Center of the Ankara Bar Association, p. 21.
270
47
is a key organ in terms of the professional careers of judges. It has the power to control a judge’s
right to continue in the profession, including the responsibility for decisions concerning those
found unsuitable to continue to serve as judges, as well as the imposition of disciplinary penalties
and removal from office.275 Moreover, investigations regarding the conduct of judges and
prosecutors shall be made by judiciary inspectors of the Council with the permission of the head
of the Council.276 Requiring permission of the Minister of Justice,- a political entity, justifies
concerns that the Minister may not grant permission for investigation with regards to judges or
prosecutors who are under the protection of the Minister or may request investigation to be
conducted only for those judges and prosecutors determined by the Minister.277
This is made even more problematic by the fact that it is not possible to appeal any decision
issued as a result of disciplinary proceedings against judges or prosecutors.278
7.4. The power to order release
International standards
The ECtHR has repeatedly stated that the judicial officer referenced in Article 5(3) “must have
the power to order release, after hearing the individual and reviewing the lawfulness of, and
justification for, the arrest and detention”.279
In this respect, there is both a procedural and a substantive requirement; “the procedural
requirement places the ‘officer’ under the obligation of hearing himself the individual brought
before him [...] the substantive requirement imposes on him the obligations of reviewing the
circumstances militating for or against detention, of deciding, by reference to legal criteria,
whether there are reasons to justify detention and of ordering release if there are no such
reasons”.280
Additionally, Article 9(4) of the ICCPR states that:
“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings before a court, in order that that court may decide without delay on the
lawfulness of his detention and order his release if the detention is not lawful”.
(emphasis added)
In applying this provision, the HRC has explained that “court review of the lawfulness of
detention under Article 9 (4), which must include the possibility of ordering release, is not limited
to mere compliance of the detention with domestic law”. 281 Such review must be “real and not
merely formal”; accordingly “the court [must] be empowered to order release, if the detention is
Constitution of Turkey, Article 159/3
Constitution of Turkey, Article 159/9
277 Özen, Muharrem, “Yargı Bağımsızlığını Zedeleyen Düzenleme, Uygulamalar ve Bağımsızlığı Sağlamaya Yönelik
Çözüm Önerileri”, Ankara Barosu Dergisi, S. 68/1, Y.2010, Ankara-2010, p. 53.
278 The European Court of Human Rights, in a case filed against Turkey (ALBAYRAK/ Turkey, Appln. No:
38406/97, 31.01.2008) held unanimously that Turkey violated Article 10 of the ECHR, stating that the judges should
not have minor safeguards when compared to other public officials and safeguards that are foreseen in respect of
other public officials should be available for judges as well. A similar case is KAYASU/ Turkey (13.11.2008,
Application. No: 64119/00 and 76292/01). The ECHR ruled that opposition remedies envisaged against the
decisions of the Supreme Council of Judges and Public Prosecutors violated Article 13 of the ECHR on effective
remedy and Article 10 on freedom of expression.
Also, although Law No 6087 on the Supreme Council of Judges and Public Prosecutors includes "re-inspection" and
"opposition" remedies, it is not possible to say that these are effective in terms of the ECHR. As a matter of fact,
judges who issue the decision against which an opposition is filed also serve in the commissions evaluating "reinspection" and "opposition" applications.
279 McKay v. the United Kingdom (Application no. 543/03, Judgement of 3 October 2006), para 35
280 Schiesser v. Switzerland, (Application no. 7710/76, Judgement of 4 December 1979), para 31
281 HRC, A v. Australia Communication No. 560/1993, Views adopted on 3 April 1997, para. 9.5
275
276
48
incompatible with the requirements in article 9, paragraph 1, or in other provisions of the
Covenant”.282
Research results
In all of the countries included in the study, the officer who is competent to order placement in
PTD is also competent to order release from PTD. In some of these countries, this power is also
granted to the prosecutor, who is competent to order release from PTD up until the pre-trial
phase.283
7.5. Limitations on the use of pre-trial detention
International standards
The general rule that PTD should be used as a means of last resort is reinforced by a number of
authorities, including: the Body of Principles for the Protection of All Persons Under Any Form
of Detention or Imprisonment (Principle 36(2)), The Tokyo Rules (Rule 6(1)), and by the Council
of Europe (CoE) Recommendation (2006) 13 of the Committee of Ministers on the Use of
Remand in Custody. This view is also supported by both the ECtHR284 and the HRC285, which
have stressed that PTD should be considered as an exceptional measure to be used only when
strictly necessary.
States should generally consider alternatives to PTD. In certain cases, the ECtHR has expressly
emphasized that part of the violation was the courts’ failure to look into the possibility of using
alternatives to detention.286
As a way of guaranteeing the sparing use of this provision, the CoE has recommended that states
use PTD only with respect to persons suspected of committing offences which are punishable
with imprisonment.287
Research results
In most of the countries surveyed in this study, clear provisions have been set out that describe
PTD as an extreme measure to be considered only if alternatives would not suffice to reach the
same end. Only Bulgaria and Moldova are lacking such language in the relevant legal texts. In
Moldova, however, in the case of minors, PTD is to be considered as a means of last resort, and
there is an obligation to consider alternatives to PTD in juvenile cases.
In Albania, PTD cannot be ordered for women who are pregnant or nursing toddlers or for
persons who are seriously ill, older than 70, addicted to drugs or alcohol or who are undergoing
therapeutic programs in a special institution. Also, minors cannot be held in PTD when accused
of an administrative offence.
As previously discussed, in many of the countries participating in this study, the seriousness of
the offence correlates with the maximum time limit for which PTD can be ordered.288 Other
countries provide for shorter time limits for PTD in the case of minors.289
HRC, A v. Australia Communication No. 560/1993, Views adopted on 3 April 1997, para. 9.5
Czech Republic, Hungary, Kazakhstan, Poland, Ukraine
284 ECtHR, Lelièvre v. Belgium, Application number 11287/03 , 8 November 2007, para 89
285 HRC Hugo van Alphen v. The Netherlands, Communication No. 305/1988, (1990) para 5.8; Mukong v.
Cameroon, Communication No. 458/1991, 10 August 1994,para 9.8; Hill v Spain, Communication No. 526/1993, 2
April 1997, para 12.3
286 ECtHR, Darvas v. Hungary, Application no. 19547/07, Judgement of 11 January 2011, para 29; Idalov v. Russia,
Application No. 5826/03,22 May 2012, para.148; Khudoyorov v. Russia, Application No. 6847/02, Judgement of 12
April 2006, para 187.
287 Recommendation (2006) 13 of the Committee of Ministers to member states on the use of remand in custody,
article 6
288 Bulgaria, Czech Republic, Hungary, Kazakhstan, Kosovo, Moldova, Montenegro, Russia, Ukraine
282
283
49
In some countries PTD may be ordered only for persons suspected of having committed an
offence which carries a prison sentence;290 in some countries the prison sentence must be more
than one year,291 two years,292 four years,293 or five years.294
In practice, it seems that allowing for PTD only when someone is suspected of having committed
an offence which is punishable with a sentence of more than one year is not a very effective
manner of ensuring the sparing use of PTD; this is the case in Lithuania, where the majority of
crimes listed in the criminal code carry a punishment of more than one year. This would apply in
Serbia as well, where PTD may be ordered for people who are accused of a crime which carries a
prison sentence; as most crimes do carry a prison sentence, the safeguard against overapplication
becomes less effective.
Another important safeguard can be seen in Albania, where a detainees may not be held in PTD
for more than half of the maximum punishment allowable for the criminal offence of which
he/she is suspected. This provision is important in order to avoid a situation in which a person
ends up being held in PTD for a period that is equal to what would be the full sentence after
conviction; such situations have been reported to occur by our researchers from Lithuania and
Serbia.
8. Review of pre-trial detention
As previously explained, there are a number of strict conditions under which PTD can be
ordered. There are limited grounds that may justify such a measure and this measure can only be
imposed by a judicial authority who is under an obligation to consider the facts before him. If
applied outside of the bounds of these required safeguards, PTD is illegal.
These requirements are extremely important in ensuring that PTD is not ordered in a
discretionary and abusive manner. However, circumstances may change and initial reasons for
ordering PTD might no longer be justifiable; this is why it is important to provide additional
safeguards to ensure that a person is released when PTD is no longer justifiable.295
One such safeguard would be allowing for ex officio review of PTD. Additionally, the detainee
should be provided with the possibility of initiating proceedings to trigger review of the
lawfulness of his/her detention.
8.1. Ex officio review of pre-trial detention
International standards
In order for a detainee to remain in PTD, judicial authorities must establish that either the PTD
or alternatives to PTD imposed on the detainee continue to be justifiable; to this end the
authority has a responsibility to initiate periodic reviews of the continued necessity of these
measures.296
Albania, Moldova, Montenegro, Lithuania
Serbia
291 Lithuania, Poland, Turkey
292 Russia
293 Romania
294 Kazakhstan and Moldova
295 Ministers’ Deputies CM Documents CM(2006)122 Addendum 30 August 2006, Explanatory memorandum Rules
on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse
, para 17
296 Ministers’ Deputies CM Documents CM(2006)122 Addendum 30 August 2006, Explanatory memorandum Rules
on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse
, para 17
289
290
50
The ECtHR is somewhat ambiguous on this responsibility. In a case from 2000, the ECtHR
stated that Article 5(3) “does not include a right to be brought repeatedly before a judge”.297
However, in 2006, the Grand Chamber of the ECtHR, when considering a claim under Article
5(3) clearly stated that:
[...] domestic courts are under an obligation to review the continued detention of persons
pending trial with a view to ensuring release when circumstances no longer justify
continued deprivation of liberty.298
Research results
With regards to ex offcio review, the practice in the CEE-FSU region varies widely. In some
countries, there is no such system.299 The countries that do offer such a review system either
impose an obligation for periodic review at set intervals or just have this as a general requirement,
without specifying any time limits.
The countries that offer ex officio review at set intervals, have established different such intervals,
including: every 30 days,300 60 days,301 or 3 months.302 The intervals can vary according to the
phase of the proceedings; for example, in Serbia and Montenegro, the court is obliged to review
detention orders every 30 days before indictment and every two months after indictment. PTD is
also generally reviewed when the court is considering whether or not to extend it.303
Other countries offer ex officio review of PTD, but do not lay out fixed intervals for its
implementation.304
8.2. Review at the detainee’s request
International standards
The right to have the lawfulness of one’s detention reviewed is enshrined both in the ECHR and
in the ICCPR.
ECHR Article 5(4) Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall be decided
speedily by a court and his release ordered if the detention is not lawful.
ICCPR Article 9(4) Anyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings before a court, in order that that court may decide without
delay on the lawfulness of his detention and order his release if the detention is not lawful.
The ECtHR has expanded upon the rights enshrined in Article 5(4) and explained that the
judicial review recognized by this right is somewhat limited, in that it cannot be said to “empower
the court, on all aspects of the case including questions of pure expediency, to substitute its own
discretion for that of the decision-making authority”.305National courts must however examine
whether there is compliance with procedural requirements set out in domestic law and also “the
reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued
by the arrest and the ensuing detention”.306
Graužinis v. Lithuania (Application no. 37975/97, Judgement of 10 October 2000) para 25
McKay v. the United Kingdom [GC] (Application no. 543/03, Judgement of 3 October 2006) para 45
299 Albainia, Georgia, Ukraine
300 Turkey
301 Romania and Serbia
302 Lithuania and the Czech Republic
303 Hungary, Moldova
304 Kosovo, Kazakhstan
305 Chahal v. the United Kingdom (Application no. 22414/93, Judgement of 15 November 1996) para. 127
306 Garcia Alva v. Germany (Application no. 23541/94, Judgement of 13 February 2001) para 39
297
298
51
The review prescribed in this article should be accessible, in that the detainee should have a
realistic chance of making use of it; it should be speedy and capable of leading to the release of
the detainee.307 With respect to the promptness of such review, the ECtHR has explained that
“where an individual’s personal liberty is at stake, it has very strict standards concerning the
State’s compliance” with this requirement.308 Accordingly, the ECtHR has found a violation of
Article 5(4) when a court took 17 days to deliver a ruling in response to a plea of unlawful
arrest.309
The review proceedings “must be adversarial and must always ensure equality of arms between the
parties, the prosecutor and the detained person”.310 One component of the equality of arms
principle is the detainee’s right to be heard either in person or through legal representation.311Also
falling within the equality of arms requirement is the obligation to allow access to those
“documents in the investigation file which are essential in order effectively to challenge the
lawfulness” of the detention.312
The ECtHR has also explained that detainees should be allowed to challenge their detention at
reasonable intervals.313 The ECtHR has explained that these intervals should be short and deemd
an interval of one month to be reasonable.314
Research results
Of the countries participating in this study, only three did not allow the detainee to initiate review
of his/her detention; these countries are: Kazakhstan, Lithuania and Ukraine. However, in
Ukraine, though the right to ask for review of a detention was not provided for by law until
recently, in practice detainees did ask the court to review their detention, and sometimes they
were granted this right. This right is now stipulated in the new Criminal Procedure Code which
entered into force on the 19th of September 2012.
Where the possibility of review exists, a detainee may request review of his/her detention at any
stage of the criminal proceedings.315
Some countries specify that if the request for review of PTD is denied, the detainee can file
another request in three months.316
Some of the researchers stated that in practice, oftentimes the exercise of this right carries a small
chance of success,317 and these requests are often dealt with in a superficial and mostly formal
manner.318
Trifković v. Croatia (Application no. 36653/09, Judgement of 6 November 2012) paras. 136, 137
Idalov v. Russia (Application no. 5826/03, Judgement of 22 May 2012) para 157
309 Kadem v. Malta (Application no. 55263/00, Judgement of 9 January 2003) paras. 44,45
310 Nikolova v. Bulgaria [GC] (Application no. 31195/96, Judgement of 25 March 1999) para 58
311 Dimitrios Dimopoulos v. Greece ( Application no 49658/09, Judgement of 9 October 2012) para 47
312 Mooren v. Germany [GC] (Application no. 11364/03, Judgement of 9 July 2009) para 124
313 Assenov and Others v. Bulgaria (90/1997/874/1086, Judgement of 28 October 1998) para 162
314 ECtHR Bezicheri v. Italy Application No. 8/1988/152/206. Judgement of 26 September 1986, para 21
315 Bulgaria Georgia Kosovo
316 Czech Republic, Poland, Turkey
317 Georgia
318 Poland
307
308
52
9. Appealing PTD
9.1. The right to appeal
International standards
The right to appeal against a decision to place someone in PTD is recognised by both the
Council of Europe and the United Nations.
Recommendation Rec(2006)13319
18. Any person remanded in custody, as well as anyone subjected to an extension of such
remand or to alternative measures, shall have a right of appeal against such a ruling and
shall be informed of this right when this ruling is made.
UN Tokyo Rules320
6.3 The offender shall have the right to appeal to a judicial or other competent independent
authority in cases where pre-trial detention is employed.
The ECtHR has explained that “Article 5 § 4 guarantees no right, as such, to appeal against
decisions ordering or extending detention [...] however, where domestic law provides for a system
of appeal, the appellate body must also comply with Article 5 § 4”.321 Also, the appellate judge
may not disregard facts raised by the application which are “capable of putting in doubt the
existence of the conditions essential for the lawfulness” of the detention. 322
Research results
In all of the countries participating in this study, a decision to place someone in PTD may be
appealed.
In most cases, this appeal can be filed by the detained person himself and/or by his/her legal
representative. In none of the countries could an NGO file an appeal against a PTD decision.
Recommendation Rec(2006)13 of the Committee of Ministers to member states on the use of remand in custody,
the conditions in which it takes place and the provision of safeguards against abuse. Adopted by the Committee of
Ministers on 27 September 2006 at the 974th meeting of the Ministers’ Deputies)
320 United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), G.A. res. 45/110,
annex, 45 U.N. GAOR Supp. (No. 49A) at 197, U.N. Doc. A/45/49 (1990)
321 Graužinis v. Lithuania (Application no. 37975/97, Judgement of 10 October 2000) para 32
322 ECtHR, Ilijkov v. Bulgaria, (Application No. 33977/96, Judgement of 26 July 2001), para 94
319
53
This chart shows who can initiate the appeal:
Table 9: Initiation of an appeal
Country
The detainees
Family
members
Legal
representative
Albania
X
X
Bulgaria
X
Czech
Republic
X
Georgia
X
X323
Hungary
X
X
Kazakhstan
X
X
Kosovo
X
X
Lithuania
X
X
Moldova
X
X
Montenegro
X
X
Poland
X
X
Romania
X
Russia
X
X
Serbia
X
X
Turkey
X
Ukraine
X
NGOs
Prosecutor
X
X
X
X
X
X
X
X
X
X
The appeals can only be made to courts, either the first instance court324 or to an appellate
court.325
9.2. Success rate of appeals
The chart bellow shows how many appeals were made and the rates of success in the years 2009,
2010 and 2011.
The average success rate of appeals in the countries where this data was available was around 1213%
The defence counsel may file the appeal only if the defendant is a juvenile or has a physical or psychological
defect which excludes the possibility to obtain his/her consent.
324 Bulgaria, Czech Republic. Kazakhstan, Kosovo, Serbia
325 Albania, Georgia, Hungary, Lithuania, Moldova, Montenegro, Poland, Romania, Russia, Turkey, Ukraine
323
54
Table 10: Success rate of appeals
2009
2010
2011
Country
Appeals
Successful
Appeals
Successful
Appeals
Successful
Albania
857
32%
1169
31%
1169
25%
Georgia
677
5%
524
2%
252
2%
Kazakhstan326
-
1.8%
-
1.8%
Moldova
1371
27,1%
1303
Russia
20200
Ukraine
4300
5.4%
16%
22.9%
327
47045
4400
1.8%
16%
1704
328
20.3%
329
6.8%
41839
4800
7%330
18%
*The following countries did not provide this information: Bulgaria,331 Czech Republic,332
Hungary,333 Kosovo,334 Latvia, Lithuania,335 Montenegro, Poland,336 Romania,337 Serbia, Turkey
Although not common, there were some reports of situations where even though an appeal
challenging a PTD order was successful, the person was not released. One such situation was
reported in Kazakhstan, where in 2009 a person detained in Almaty338 was not released despite a
judicial decision ordering it. A similar incident was reported in Lithuania, where in 1998 a person
was kept in detention for one and a half months despite there being no valid court order
justifying his detention. This case later reached the European Court of Human Rights and a
violation of Article 5(1) was found.339
According to the responses to this study, which reflect the professional experience of our
respondents, there is no single common ground across countries on which a decision to place
someone in PTD can be successfully challenged. Arguing that the threat of interference with the
course of justice is no longer justified, or was never justified, especially when the testimonies have
already been taken and the evidence collected, seems to work better in the Czech Republic and
Hungary, while in Lithuania and Poland an argument that there were no sufficient grounds for
placement in PTD in the first place has proven the most successful in an appeal against a PTD
order.
Kazakhstan did not provide how many appeals were filled but estimated that in 2011, 10% of PTD decisions were
appealed
327 25749 of whom appealed the decision to extend their detention
328 Regarding extension: 1625 (6.3%)
329 23982 of whom appealed the decision to extend their detention
330 Regarding extension: 1278 (5.3%)
331 No official data available but most people do appeal and most often their appeals are unsuccessful
332 No official data available but most people do appeal and most often their appeals are unsuccessful. Most people
who are released from PTD are released because an ex officio review and not as a result of an appeal
326
This information is available just for 2012. For 2012, in the Supreme Court of Kosovo are accepted and
processed 175 cases of complaints against the decisions for detention. In the first quarter period (till March) are
accepted 184 cases. In the second quarter period (till June) are accepted 172 cases, in the third quarter period (till
September) 192 cases, while in the last quarter period are accepted 206 cases. Experience suggest that most appeals
are not successful
335 Lithuania estimated that in 2010 and 2011 38% of decisions ordering PTD were appealed, with a success rate of
6.59% in 2010 and 8.41% in 2011
336 The country experts estimate that most people file an appeal and that only about 10% of these appeals are
successful
337 The country experts estimate a 30% success rate of appeals
338 The case is reported by our researchers as case number 08751703110980
339 Vaivada v. Lithuania (Application nos. 66004/01 and 36996/02, Judgement of 16 November 2006).
334
55
9.3. Deadline for an appeal
The countries participating in this study set very different deadlines within which an appeal can
be made against a detention order. These were: 24 hours,340 48 hours,341 three days,342 seven
days,343 ten days,344 and 20 days.345 In Hungary if the decision was delivered orally at the
hearing, the appeal must be communicated right away. Any person who is entitled to file an
appeal and was not present at the hearing has three days from the day of the hearing.
Providing only a short period of time to lodge an appeal can impede the right to effectively
challenge one’s detention. This can be made even more problematic when the legal representative
does not have the right to file for appeal himself and must visit the detainee in PTD to get his
signature. For example, in Georgia, only pre-trial detainees have the right to appeal (the defence
counsel may file the appeal acting alone only if the defendant is a juvenile or has a physical or
psychological impediment which excludes the possibility of obtaining his/her consent) , and the
deadline for appealing is only 48 hours.346 Under this time constraint, it is very difficult for a
lawyer to prepare an appeal, visit the pre-trial detainee and hand him/her the appeal for signing.
For this reason, our Georgian researchers believe that a lawyer should have the right to appeal
PTD without obtaining direct consent from the detainee. This way, in addition to the work of
preparing an appeal within 48 hours, the lawyer would not have to visit the pre-trial detainee for
his signature, but rather, could file the appeal himself.
10. After a final sentence is reached
10.1. Deducting pre-trial detention from a final sentence
International standards
When a final sentence is reached and the defendant is found guilty and given a prison sentence,
the period of time spent in PTD should be deduced form this prison sentence.347
Research results
In all of the countries participating in the study, if a person is found guilty, the period spent in
PTD is deducted from the final sentence. However, there are different ways of calculating this
deduction. In Kazakhstan and Poland, the PTD period is deducted according to a formula which
equates one day in PTD to one day of imprisonment, while in Albania for one day spent in PTD,
one day and a half will be deducted from the term of imprisonment.
Also, when the final sentence is a fine, there are different systems of subtracting the time spent in
PTD from the ultimate fine. In Poland, one day in PTD would be equivalent to two daily rates of
the fine, while in Turkey one day in PTD is assumed to correspond to one hundred Turkish Lira.
10.2. Compensation if released without a conviction
International standards
This is a fairly straightforward right which is recognized both by the ICCPR and the ECHR.
Kosovo, Romania and Montenegro
Georgia
342 Czech Republic, Kazakhstan, Moldova, Russia, Serbia, Ukraine
343 Poland and Turkey
344 Albania
345 Lithuania
346 Article 207 of CPC
347 Ministers’ Deputies CM Documents CM(2006)122 Addendum 30 August 2006 Explanatory memorandum Rules
on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse
, para 33
340
341
56
ECHR 5.5 Everyone who has been the victim of arrest or detention in contravention of
the provisions of this Article shall have an enforceable right to compensation.
ICCPR 9.5 Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation.
Research results
Most of the countries participating in this study provide for a detainee’s right to request
compensation if the detainee is released from PTD without a final judgment finding him/her
guilty and sentencing him/her to imprisonment348
In some countries, there are exceptions to this right. For example, in Albania if the detainee is
wholly or partially to blame for a failure of the investigators to rightfully appraise the situation or
to identify some mitigating evidence, he/she is not entitled to compensation. In Hungary if a
detainee has escaped or has attempted to escape from court, from the prosecutor or from the
investigating authority, he/she shall not be entitled to receive any compensation.
In some countries, detainees are only entitled by law to request compensation in cases of illegal
detention where a court finds that a former order for placement in PTD was illegal. However,
acquittal alone does not render the placement in PTD illegal.349
Also, even when the right to compensation is guaranteed by law, it seems that in some countries
the state is reluctant to pay such compensation. In Ukraine in order to bypass the payment of
compensation for PTD the courts avoid handing down acquittals; they are more likely to
sentence the detainee to the term which he has already spent in PTD. In 2011 there were only
0.2% of acquittal verdicts in national judicial practice. This number has not exceeded 1% in the
previous 10 years.
This is not the case everywhere, however. In 2011, in Montenegro there were a total of 228
requests for compensation; the state recognized 70 of these requests and paid out a total of
195.120,00 EUR. Another 78 cases remain to be resolved through the ordinary civil procedure,
and a further 54 cases are ongoing in the Ministry of Justice.350 According to the 2004 Orientation
Guidelines of the High Court in Podgorica, an award of compensation for one month of
unjustified detention amounts to 3.500-4.000 EUR. However, according to lawyers interviewed
for this report, the amounts awarded in 2011 and 2012 were lower than those prescribed by the
guidelines.351 The amount of compensation for unlawful deprivation of liberty or sentences
judged to be without legal grounds in the year 2000 was 251,176.17 DEM.352
Another interesting feature revealed by the study was that in Albania the compensation afforded
for one day spent in PTD is higher than that for one day spent in prison. The compensation for
one day spent in prison is 2000 lek (around 14.6 euro) and for one day in PTD, the compensation
is 3000 lek (around 22 euro).
Albania, Czech Republic, Georgia Hungary Kazakhstan Kosovo Moldova, Montenegro, Russia, Serbia, Turkey
Bulgaria, Lithuania, Montenegro
350 Izvještaj o radu i stanju u upravnoj oblasti Ministarstva pravde sa Izvještajem Zavoda za izvršenje krivičnih sankcija za
2011.godinu, strana 33 (The Report on work and condititon in administrative area of the Ministry of Justice with the
Report of IECP for the year 2011, Podgorica, p.33).
351 Interviews with lawyers V. Radulovic and D. Tomovic, July 2012.
352 The information obtained from the Ministry of Finance of Montenegro, by HRA’s researcher.
348
349
57
11. State funded legal aid
11.1. Brief summary of international standards
11.1.1. International Covenant on Civil and Political Rights
According to the ICCPR criminal defendants have a right to free legal aid, if the interest of justice
so requires and the defendant does not have sufficient means to pay for it:
ICCPR Article 14.3 In the determination of any criminal charge against him, everyone
shall be entitled to the following minimum guarantees, in full equality:
(d) to be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal assistance, of
this right; and to have legal assistance assigned to him, in any case where the interests of
justice so require, and without payment by him in any such case if he does not have
sufficient means to pay for it
According to this provision the initial test to be used in determining whether the state is under an
obligation to provide free legal aid is whether the interests of justice so dictate. The HRC analyzes on
a case-by-case basis whether this criteria is met. For example, when a defendant requested free
legal aid in order to formulate a defence against a trespassing charge which carried as a penalty a
mere fine , the HRC did not find that the interest of justice criteria was met. 353 However, the
interest of justice will always be met when someone is accused of an offence that carries the
death penalty.354
The right to legal aid applies to not only to the trial and relevant appeals,355 but also to any
preliminary hearing relating to the case.356
When legal aid is provided, although the state is not under an obligation to allow the defendant to
choose a lawyer,357 the state is under an obligation to ensure that once a lawyer is assigned,
he/she provides effective legal representation.358 However, the state party cannot be held
accountable for alleged errors made by a defence lawyer, unless it was or should have been
manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice. 359
11.1.2. European Court of Human Rights
In addition to the ICCPR, Article 6(3)(c) of the ECHR also provides that every person charged
with a criminal offense has the right to “defend himself in person or through legal assistance of
his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free
when the interests of justice so require”.
The ECtHR expanded this provision to include the criterion of effectiveness, when in the case of
Artico v. Italy360 it ruled that the state does not fulfill its obligations under the Convention simply
by providing an ex officio defense counsel; the defense counsel’s performance must also be
effective. Although in the case of Kamasinski v. Austria361 the ECtHR qualified this position by
stating that the state cannot be held responsible for all of the failings of the ex officio appointed
20 October 1998, Lindon v. Australia, 646/1995 , para. 6.5
30 March 1989, Robinson v. Jamaica, 223/1987, para 10.3
355 3 November 1997, Thomas v. Jamaica, 532/1993, para 6.4
356 3 November 1997, Thomas v. Jamaica, 532/1993, para. 7.2; 25 November 1998, Johnson v. Jamaica, 592/1994 ,
para. 10.2
357 Barno Saidova v. Tajikistan, CCPR/C/81/D/964/2001 (2004)
358 Borisenco v. Hungary, 852/1999 (1999)
359 Beresford Whyte v. Jamaica, CCPR/C/63/D/732/1997 (1998)
360 6694/74, Judgment of 13/05/1980
361 9783/82, Judgment of 19/12/1989
353
354
58
defense counsel; the ECtHR also made it clear that if the ex officio defense counsel has obviously
failed to perform his duties, or his omissions have been duly brought to the attention of the
authorities, the state can be held to be in breach of the Convention. The Court’s ruling in the
case of Czekalla v. Portugal362 has demonstrated the costs that the state must bear if it is found by
the Court to be in violation of the above provision. In the case of Czekalla, the applicant’s ex
officio appointed defense counsel submitted an appeal in an inappropriate way against the
judgment of conviction; hence the Portuguese second instance court rejected the appeal without
an examination on the merits. The ECtHR found a violation of Article 6(3)(c).
11.1.3. United Nations Principles and Guidelines on Access to Legal Aid in Criminal
Justice Systems
On 20th of Demeber 2012, the United Nations General Assembly, adopted a resolution on
United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems,
and recommended to States to tailor their legal aid system in line with this resolution. 363
This is the world’s “first international instrument dedicated to the provision of legal aid”, and it
embodies some of the best practices from around the world, providing „some of the most
progressive principles and guidelines on legal aid” in the world.364
This resolution emphasizes the important role legal aid plays in criminal justice systems and it
highlights some of the many benefits a legal aid system may have in reducing prison populations,
reoffeding rates and in preventing wrongfull convictions.365
Under this resolution states should consider legal aid as their obligation.366 Legal aid should be
available at all stages of the criminal justice system, for “anyone who is arrested, detained,
suspected of or charged with a criminal offence punishable by a term of imprisonment or the
death penalty.”367 Also, when the interest of justice so requires, legal aid should be provided
irrespective of the person’s means.368
The resolution also specifies a number of guidelines that should be followed so that detainees
have access to a lawyer at this stage of the criminal proceedings. 369
38830/97, Judgment of 10/10/2002
Please see the U.N. press release of 20th December 2012, for its Sixty-seventh General Assembly Plenary 60th
Meeting (AM), available at: http://www.un.org/News/Press/docs/2012/ga11331.doc.htm [ last accessed on 8th of
February 2013]
364 Zaza Namoradze, UN General Assembly Enacts Global Standards on Access to Legal Aid, Legal Aid Reformer’s
Netwrok, 21st December 2012, available at: http://www.legalaidreform.org/news/item/484-un-general-assemblyenacts-global-standards-on-access-to-legal-aid-by-zaza-namoradze [ last accessed on 8th of February 2013]
365
United Nations Economic and Social Council, Commission on Crime Prevention and Criminal Justice,
E/CN.15/2012/L.14/Rev.1, Annex: United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice
Systems, Twenty-first sessionVienna, 23-27 April 2012, article 3, avaliable at: http://daccess-ddsny.un.org/doc/UNDOC/LTD/V12/528/23/PDF/V1252823.pdf?OpenElement [last accessed on 8th of February
2013]
366 Ibid, para 14
367 Ibid, para 20
368 Ibid, para 21
369 Ibid, para 44
362
363
59
11.2. Research results
11.2.1. Eligibility for state-funded legal aid
Eligibility for state-funded legal aid centres around two notions: indigent defendants and cases of
mandatory defence, if no defence counsel is retained by the defendant.
a) Indigent defendants
As shown by Table 11 below, in 10 of the countries covered in this research, indigent defendants
are entitled to free (state-funded) legal aid. A range of different aspects are taken into account by
the states when qualifying a defendant indigent, for example:

Bulgaria: Legal aid may be provided to persons eligible for social assistance and persons
living in special institutions.370 (If a request for legal aid is refused, the decision may be
appealed before an administrative court.)

Lithuania: Defendants may receive state-funded legal aid if their yearly income does not
exceed a certain maximum level set by the Government.

Poland: Defendants are eligible for free legal aid if they can duly prove that they are not
able to cover the costs of their defense without causing detriment to the necessary
maintenance of themselves and their families.
As a main rule, indigent defendants shall receive free legal aid irrespective of their other
characteristics or the offence they are accused of. However, in Georgia, indigence is assessed only
in cases of mandatory defence, while under the Serbian Criminal Procedure Code, a defendant
who cannot afford an attorney shall have one appointed at his request if he/she is charged with a
crime warranting over three years’ imprisonment (or when the interests of fairness so require).371
A special problem regarding the assessment of indigence was reported in Georgia, where as a
rule, only members of families registered in the Common Database of Socially Vulnerable
Families are regarded as indigent.372 (The socio-economic index of these families falls below a
certain limit determined by the Georgian government.) The Georgian Young Lawyers
Association reported that since the process of determining insolvency and granting a family the
status of “socially vulnerable” is rather problematic and flawed, there are insolvent persons who
are not able to exercise their right to a free attorney because they could not be registered in the
database or could not obtain sufficient scores to be entitled to the benefit (e.g. persons not
having a concrete, registered address are not able to register in the database.). Although the
relevant legal provisions provide for an exception373 (in extraordinary cases the director of the
Legal Aid Service is entitled to grant free legal assistance for a person who is not registered in the
database of socially vulnerable families), interviews conducted by the Georgian Young Lawyers
Association show that the latter provision is rarely used.
b) State-funded legal aid in cases of mandatory defence
As also shown by Table 11 below, in 10 of the countries covered by the current research, statefunded legal aid is provided in cases of mandatory defence if the affected defendant fails to retain
defence counsel, irrespective of the defendant’s financial status. Typical instances of mandatory
defence include the following:

the defendant is currently detained (including pre-trial detention),
370
Article 22 of the Legal Aid Act of Bulgaria
Criminal Procedure Code of Serbia, Article 77
372 Law of Georgia on Legal Aid, Article 2 (g)
373 Law of Georgia on Legal Aid, Article 5
371
60



the defendant is a juvenile,
the defendant does not understand the language of the procedure,
the defendant suffers from a physical or mental disability, which hinders him/her in
defending himself/herself,
 the defendant is charged or accused of with a grave offence, punishable by a high
sentence.
Table 11 shows whether the countries covered by the present research provide free legal aid in
theses typical cases of mandatory defence.
It may be interesting to have a look at how the different legislations define a “grave” offence or a
“high” sentence, i.e.: with how severe a sentence must the given offence be punishable with in
order to qualify the alleged perpetrator for free legal aid? Examples include the following:

Georgia, Lithuania, Ukraine: offence punishable with life imprisonment,

Kazakhstan: offence punishable with more than 10 years of imprisonment, life
imprisonment or death penalty,

Russia: offence punishable with 15 years of imprisonment or more,

Hungary: offence punishable with five years of imprisonment or more.
Table 11: Defendants eligible for state funded legal aid
Indigent
Mandatory Mandatory defence cases, namely (if detailed):
defendants defence
cases
Defendants Juveniles Language Disability Gravity of the
in PTD
barriers
offence/possible
sentence
Albania
Bulgaria
Czech
Republic
Georgia
Hungary
Kazakhstan
Kosovo
Lithuania
Moldova
Montenegro
Poland
Romania
Russia
Serbia
Turkey
Ukraine
X
X
x
x
x
X
X
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
N/A
X
X
X
X
N/A
N/A
x
x
x
x
x
x
x
x
x
x
X
X
N/A
x
x
x
x
x
x
x
x
x
x
x
x374
x
x
x
x375
As soon as the defendant is detained or charges are brought against him/her.
As soon as the defendant is detained or charges are brought against him/her, or from the moment of
ascertainment of his/her disabilities.
376 As soon as the defendant is detained or charges are brought against him/her.
374
375
61
x
x
x376
It may be added that according to information provided, in Kazakhstan detainees may apply for
state-funded legal aid at any stage of the criminal procedure without describing their reasons for
it, and shall receive legal aid in these cases.377 From Romania it was reported that if criminal
defendants do not retain defence counsel, they are automatically entitled to a state-paid attorney.
11.2.2. Scope of state-funded legal aid
As to the scope of the state-funded legal aid, it may be concluded that almost all countries
covered by the research ensure the possibility of relying on state-funded legal assistance prior to
and during the first interrogation (e.g. at the police station) and regarding court hearings related
to the pre-trial detention and alternatives to the pre-trial detention, along with appeals against
decisions ordering pre-trial decision.378
As far as legal aid for complaints and requests regarding certain further aspects of pre-trial
detention are concerned, research results are more diverse, as shown by Table 12 below.
Table 12: Extent of state funded legal aid
Complaints regarding
detention conditions
while in PTD
Complaints regarding
length of PTD
Request for early
release
Albania
-
-
-
Bulgaria
x
x
x
Czech Republic
-
-
-
Georgia
x
-
x
Hungary
x
x
x
Kazakhstan
x
x
x
Kosovo
-
-
-
Lithuania
-
-
-
Moldova
x
x
x
Montenegro
x
x
x
Poland
x
x
x
Romania
x
x
x
Russia
-
x
-
Serbia
-
-
-
Turkey
-
-
x
Ukraine
N/A
N/A
N/A
In terms of the scope of the legal assistance provided, the Albanian system is worth mentioning.
According to Albanian law, there are two categories of legal assistance. “Primary” legal aid means
providing information about the legal system of Albania, normative acts in force, the rights and
Criminal Code of Kazakhstan, Article 71
No data is available regarding Latvia and Ukraine. In Serbia, state funded legal aid is available only prior to and
during first interrogation.
377
378
62
obligations of subjects of the law, the way of exercising the rights of the individual in judicial and
extra-judicial processes, as well as providing assistance in compiling legal documents or other
forms. “Secondary” judicial aid covers counselling, representation, or defence in penal judicial
processes, civil and administrative judicial processes, as well as representation before
administrative state bodies. There is a similar system in Moldova, where, since 2007, the law on
legal aid distinguishes between “primary” and “qualified” legal aid.
11.2.3. System for assessing the performance of state-funded legal aid lawyers
From seven countries (Albania, Hungary, Kazakhstan, Lithuania, Moldova, Romania and Russia)
it was reported that there is no system at all aimed specifically at assessing the performance of
state funded legal aid attorneys.379 Further information shows that in some of the countries, the
Bar Association and the courts have some powers in terms of sanctioning state-funded lawyers
who do not carry out their tasks properly: Bar Associations may initiate disciplinary proceedings,
while courts may replace defence counsels with another attorney. However, the existence and the
exercise of these powers may not be considered a regular or efficient assessment or monitoring
of the legal aid system.
State-funded legal aid attorneys may be subject to disciplinary proceedings by the Bar
Associations in the Czech Republic, Hungary,380 Poland and Serbia.381
Examples of court powers include the following:

Czech Republic: The court may exclude the attorney from the procedure, inter alia for
his/her inactivity.382 It was reported that courts are sensitive to any inappropriate conduct
on behalf of attorneys.

Montenegro: The competent state prosecutor or the president of the court may dismiss
the appointed defence counsel who fails to regularly perform his/her obligations. The Bar
Association shall be informed about the dismissal of the defence counsel.383

Turkey: The Criminal Procedure Code sets out the following: “In cases where the defence
counsel does not appear at the main trial, or steps out of the main trial without
considering the proper time or fails to fulfill his duties, then the judge or trial court shall
make the necessary interactions to appoint another defense counsel immediately. In such
an event, the court may interrupt or adjourn the main trial to a later date. If the new
defense counsel asserts that he has not been given enough time to prepare a defense, then
the main trial must be adjourned”.384 It was reported that in practice, the provision above
is applied only with respect to defense counsels who does not appear in the court.
However, no steps are taken against a defense counsel who appears in the court, but does
not provide an effective defence. Furthermore, in certain cases the courts may lodge a
criminal case against those defense counsels who do not appear before the court.
So far only Georgia has a separate body, vested specifically with the task of monitoring the state’s
legal aid system, been established : a supervising authority, the Monitoring Council of the Legal
No exact information is available regarding Bulgaria and Kosovo.
While the Criminal Procedure Code sets out that the defence counsel should contact the defendant without delay
and to use all lawful means and methods of defence at the appropriate times in the defendant’s interests, if the
defence counsel fails to fulfil these obligations, he/she will commit an ethical misdemeanour at most. However,
procedures on ethical misdemeanour against appointed lawyers are very rare.
381 Defence counsels shall act in accordance with the law and ethical standards of the Bar Association, and can be
sanctioned for violating these standards.
382 Criminal Procedure Code no. 141/1961 Coll., Article 37a
383 The Law on Criminal Procedure, Official Gazette of Montenegro, no.57/09 i 49/10, Article 71, Paragraph 4 and
5
384 Criminal Procedure Code No. 5271, Article 151/3
379
380
63
Aid Service, has been set up to ensure the independence, transparency and effectiveness of the
Legal Aid Service.385 However, it was reported that the Monitoring Council is ineffective:
according to available data, it has never carried out actual monitoring activities and there are no
practical monitoring tools envisaged by the legislation or in practice.
It was reported regarding Ukraine that as part of a pilot project, a system for monitoring the
work of state-funded lawyers had beenset up.
11.2.4. Practical deficiencies reported
a) Concerns related to the performance of state-funded lawyers – Ineffective
defence?
Georgia: It was reported that pre-trial detainees frequently complain about lawyers appointed at
the state’s expense. Complaints mostly concern their attitude towards the case and their failure to
allocate appropriate time for working on the case. Reasons include the massive workload of statefunded attorneys.
Hungary: Empirical studies clearly show that indigent defendants do not have access to quality
legal aid in Hungarian criminal investigations: legal aid lawyers often do not contact their clients,
fail to attend interrogations and remain passive even when present.
Kosovo: In certain cases, doubts were raised regarding the performance of lawyers appointed.
Lithuania: In practice, state-funded lawyers most often devote little time and effort to cases. Thus,
defendants usually receive low-quality service in the framework of state-funded legal aid.
Moldova: The legal assistance provided is not in all the cases real and effective.
Montenegro: Appointed attorneys are not always specialists in criminal law, which may influence
the quality of the defence. Detainees often choose the same attorneys, which may also influence
the quality of work due to the workload of such “popular” attorneys.
b) Concerns related to the independence of state-funded lawyers
Georgia: State-funded lawyers’ independence and objectivity have been questioned, since the Legal
Aid Service falls under the Ministry of Corrections and Legal Assistance (MCLA). Furthermore,
there have been cases of conflict of interests, when a lawyer of the Legal Aid Service provided
defence for an individual whose rights have been violated by the authorities that the lawyer also
represented, i.e. the MCLA or an agency within the MCLA (e.g. a penitentiary establishment).
There have been cases when a Legal Aid Service lawyer, who was defending the interests of a
detainee, requested information from a penitentiary institution, which refused to provide the
information. The lawyer should have appealed the refusal in court, but he could not or chose not
to do so, since by doing so he would have gone up against the Ministry. On the basis of these
experiences, it was claimed by the Georgian Young Lawyers Association that subordinating the
Legal Aid Service to the MCLA is problematic, and the conditions necessary for ensuring
institutional independence of the Legal Aid Service must be created
Hungary: In Hungary, the legal aid lawyer on a given case is selected by the Police during the
investigation, which – by its nature – does not have an interest in efficient defense work. Under
the law, the Police have total discretion in selecting lawyers from the list compiled by the Bar
Associations. Data requests by the Hungarian Helsinki Committee showed, e.g., that at some
Budapest police stations, one or two lawyers get approximately 90% of all appointments.
Together with further empirical studies, this indicated that some attorneys base their entire
practice on appointments, and hence are financially dependent on the appointing officer, who is
disinterested in effective defense. This situation is prone to a form of corruption, as the lawyer’s
385
Law of Georgia on Legal Aid, Article 10
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financial interest may have a negative impact on the quality of his/her work. Since no entity
monitors the appointment practice, and no data are made available on the issue, related police
practices lack any transparency.
Kazakhstan: It is claimed that state-funded lawyers may be loyal to the investigators.
c) Financial matters affecting the legal aid system
Bulgaria: The fees of state-funded lawyers are not regulated. Fees usually range from 80 to 200
euros for one phase of the case (i.e. for each court appearance), but the court often lowers the
lawyers’ fees to 50-60 euros.
Hungary: The fees of state-funded attorneys are way below market prices, and legal provisions
allow payment of fees for only certain activities. For other activities, such as the writing of
petitions or appearing in a hearing during the investigating phase of the procedure, no payment is
allowed. Accordingly, appointed lawyers are not motivated to participate in activities that are not
funded.
Kazakhstan: Rates of state funded lawyers are extremely low.
Russia: The Ministry of Finance establishes a certain range of payment for one day for a defense
counsel’s participation at investigative acts. It also specifies the factors that determine the actual
sum of compensation within this range (number of suspects, complexity of the case, involvement
of juvenile offenders, number of counts, etc., including the breakdown of wages for weekend,
weekdays, holidays, day and night working hours). Local bar associations in cooperation with the
Ministry of Internal Affairs establish overall sums for transactions. Thus, in one day it is more
beneficial for a lawyer to be present at 10 minimally compensated investigative acts performed by
different investigators, than to be present at 3-4 investigative acts performed by the same
investigator. However, the investigator might make come to terms with the lawyer by writing
him/her several so-called payment obligations for an overstated rate, although the lawyer spent
just one day with him/her.
Turkey: The TOHAV conducted a number of interviews with officers of the Istanbul Bar
Association, Criminal Procedure Code (CMK) Service, and with practicing lawyers. Interviews
showed that experienced and senior lawyers with a long professional carreer do not apply to
participate in the defense counsel appointment system because of the low fee rates, and their
inability to obtain the cost of travel expenses to appear at the hearings and prisons, as well as
photocopy charges. As a result, most state-funded lawyers are younger and more inexperienced.
(The CMK officers interviewed stated that lawyers participating in the CMK service have
generally been working as lawyers for five years or less.386) Most of the lawyers interviewed stated
that the allowance paid to state-funded defense lawyers is not even comparable with the work
and time devoted to the cases.
Ukraine: It was reported that the payment of state-funded attorneys is low and that they are
attracted to the work forcibly and as a result, typically only go through the motions of defending
a case. However, the government has begun to improve its state-funded legal aid system.
Facilitated by human rights organizations, three pilot, free legal aid offices were established in
three Ukranian regions. In these pilot offices, lawyers work for a more or less sufficient
remuneration, and the system of payment for their services is based on time spent on the case
and the difficulty of the task. On the basis of the experiences of these offices, methods of
calculating attorneys’ fees were established, and the system of free legal aid in criminal
proceedings will be reorganized. From 1 January 2013 similar free legal aid centres will start to
Young lawyers refer to the state funded legal aid system due to economic reasons, since they have not yet attained
a sufficient client portfolio. Another purpose of younger lawyers registered to the defence counsel appointment
system is to gain practical experience.
386
65
operate in all other regions of the country, and it was reported that the government is committed
to maintain these offices and pay for the lawyers’ work a reasonable rate, according to their
workload and the complexity of cases.
12. Advocacy
12.1. International jurisprudence
Many of the researchers participating in this study indicated that in their countries international
jurisprudence plays an important role in their national legal systems. 387
For example in, Montenegro the Constitutional Court in its judgment U-III No. 348 directly
referred to the jurisprudence of the ECtHR when explaining that when PTD is ordered due to
concerns over public order, there must be concrete evidence to justify these concerns.
Also, in Turkey, the government undertook considerable amendments to the length of PTD, as a
response to ECtHR jurisprudence. In a decision on November 26, 1997 regarding Mr. Sakık and
others,388 the ECHR ruled that extended detention of the applicants in police custody (Sakık,
Türk, Alınak and Zana 12 days, Dicle and Doğan 14 days) and the failure to bring them before a
judge within a reasonable time period is a breach of the 4th paragraph of Article 5 of the
Convention.
International jurisprudence has even been shown to work indirectly. For example, between 2010
and 2011 the ECtHR would not allow that defendents be extradited to Kazkhstan because of
concerns over torture. This fostered considerable local political will to alleviate concerns relating
to the practice of torture in Kazakshtan.
However, some researchers stated that in their countries, international jurisprudence does not
have much of an impact.389
This is so for a number of reasons.
One cause is the fact that international jurisprudence is not directly enforceble in a particular
country. In Albania there is no law regarding the execution of ECtHR decissions. The Albanian
Helsinki Comittee tried to push for such a law in 2011 but with no results so far. They only
managed to convince the Supreme Court in 2012 to allow for a case to be reviewed when there is
an ECtHR judgement, on the ground that the ECtHR judgement can be considerd a new “fact”
justifying review of the case.
Also, many times states would refuse to amend legislation and would simply pay compensation
granted in a particular case, 390 or if they did ammend legislation, they would not really implement
the amendment it in practice. 391
12.2. National jurisprudence
Most of the countries surveyed indicated that national courts can be effective in influencing their
legal system and generating change,392 while others indicated that the courts fail to do so. 393
In the judicial systems of the countries participating in this study the most influencial courts are
usually the supreme courts394 and the constitutional courts.395 In many of these countries, the
Albania, Czech Republic, Kazakhstan, Kosovo, Moldova, Montenegro, Romania, Russia, Serbia
and Others v. Turkey (Application number : 87/1996/706/898-903, Judgement of 26 November 1997)
389 Bulgaria, Hungary, Lithuania, Poland
390 Hungary
391 Georgia
392 Albania, Czech Republic, Georgia, Kazakhstan, Kosovo, Montenegro, Poland
393 Bulgaria, Hungary, Turkey
394 Albania, Kazakhstan, Moldova, Poland, Romania, Russia, Ukraine
387
388Sakik
66
supreme courts are the only ones whose jurisprudece is generally binding for other courts. 396 This
is very important as many of our researchers pointed out that in their countries judicial practice is
not uniform and varies from court to court. 397 In Lithuania this has changed thanks to a
decission of the constitutional court, which ruled that Lithuanian courts are bound by their own
precedents, as well as those of higher courts.398
In the Czech Republic the major and recent amendment of the proceedings on pre-trial
detention, Law no. 459/2011, is based largely on domestic jurisprudence, especially on decisions
of the constitutional court. For example, the constitutional court ruled that the accused must be
heard during the review of PTD. Also, the constitutional court in its decision no. Pl. ÚS 6/10 of
20 April 2010, quashed article 74 (2) of the Code of Criminal Procedure, which provided that the
accused person must be held in detention, even though the court found him or her not guilty but
the state prosecutor appealed the court’s decision.
12.3. Most effective means of promoting change
The researchers were asked to to assess, according to their own experiecne, what advocacy tools
proved to be most effective in generating practical, positive changes in their criminal justice
system, especially with respect to those policies relating to PTD and alternatives to PTD. They
had to rate all advocacy tools on a scale of 1 to 5; one (1) being not very effective and five (5)
being very effective.
The graph below was generated from their answers. As can be seen, most indicated that
international litigation would be most effective, while demonstrations and open letters were seen
as the least effective.
Figure 10
4.50
4.00
3.50
3.00
2.50
2.00
1.50
1.00
0.50
0.00
395Albania,
Russia
Albania, Kazakhstan, Moldova, Poland, Romania
397 Romania, Serbia, Ukraine
398 Lietuvos Respublikos Konstitucinis Teismas, 33/03, 28.03.2006, available at:
http://www.lrkt.lt/dokumentai/2006/r060328.htm (08.05.2012, English).
396
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The researchers were also asked to asses, based on their professional experience, what would be
the most relevant target audience for any advocacy effort relating to PTD and alternatives to
PTD. They were asked to assess a number of targets on a scale of 1 to 5; one (1) being not very
relevant and five (5) being very relevant.
The graph below was generated from their answers. As can be seen, the government, especially
through its various ministraies and agencies is seen to be the most relevant target of any advocacy
campaign while Prison Service Offcials and Trade Unions are perceived to be the least effective.
Figure 11
5.00
4.50
4.00
3.50
3.00
2.50
2.00
1.50
1.00
0.50
0.00
12.4. Ability of NGO sector to promote change
The researchers were also asked to comment on the role and power that NGOs have in their
country to influence policies relating to PTD and alternatives to PTD. They were required to
provide concrete examples.
Most of the respondents stated that NGOs are very active in developing new policies and
legislation. In Ukraine NGOs have been very active in the development of a new Criminal Code,
and in Romania NGOs have helped build the country’s probation services.
However, a majority of the respondents were doubtful as to the power NGOs have in promoting
reform,399 only some were confident in this power.400 Also, others pointed out that NGOs are
most effective when their expertise is requested by state officials; in these situations the likelihood
of influencing policy and legislation is the highest.401
In order to optimize their power, some respondents emphasized the need to form NGO
coalitions402 or partner up with international organizations such as USAID, ODIHR403 or the
European Union.404
Bulgaria, Georgia, Kosovo, Serbia
Kazakhstan, Russia
401 Lithuania
402 Georgia
403 Kazakhstan
404 Montenegro
399
400
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